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Full-Text Articles in Law
Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro
Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro
Indiana Law Journal
We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Indiana Law Journal
Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …
The Constitutional Tort System, Noah Smith-Drelich
The Constitutional Tort System, Noah Smith-Drelich
Indiana Law Journal
Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.
This Article constructs a framework of the constitutional tort system, …
Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson
Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson
Indiana Law Journal
Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Indiana Law Journal
Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.
This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …
Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner
Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner
Indiana Law Journal
American Association of Law Schools Torts & Compensation Systems Panel
The Kindynamic Theory Of Tort, Christopher P. Guzelian
The Kindynamic Theory Of Tort, Christopher P. Guzelian
Indiana Law Journal
Commentators complain of two major deficiencies in modern tort law: (1) that liability concepts such as "negligence" or "duty " are so vacuously defined as to permit inadvertent subjectivity and error to hinder proper case adjudication, and (2) that tort is too slow in recognizing newly discovered risks and properly compensating nascent classes of injury. We accordingly report on the Kindynamic Theory, an emerging philosophy that overcomes these twin deficiencies and sharpens understanding of poorly articulated tort intuitions
Kindynamics contends that causation is the cornerstone of tort, and that all risks are, at core, causal propositions. Contrary to its many …
Tort Law And The Demands Of Corrective Justice, Jules L. Coleman
Tort Law And The Demands Of Corrective Justice, Jules L. Coleman
Indiana Law Journal
No abstract provided.
Comment On Coleman: Corrective Justice, Stephen R. Perry
Comment On Coleman: Corrective Justice, Stephen R. Perry
Indiana Law Journal
No abstract provided.
Comparing Fault, David C. Sobelsohn
The Duty To Rescue In Tort Law: Implications Of Research On Altruism, Viloa C. Brady
The Duty To Rescue In Tort Law: Implications Of Research On Altruism, Viloa C. Brady
Indiana Law Journal
No abstract provided.
The Director's Liability For Negligence, Richard B. Dyson
The Director's Liability For Negligence, Richard B. Dyson
Indiana Law Journal
No abstract provided.
Liability For Aircraft Damage To Ground Occupiers-A Study Of Current Trends In Tort Law
Liability For Aircraft Damage To Ground Occupiers-A Study Of Current Trends In Tort Law
Indiana Law Journal
No abstract provided.
A Rationale Of Negligence Per Se
Statutory Liability Of Railroad To Injured Employee
Statutory Liability Of Railroad To Injured Employee
Indiana Law Journal
Recent Cases: Torts
Employer's Liability In Hiring Physically Unfit Employee
Employer's Liability In Hiring Physically Unfit Employee
Indiana Law Journal
Recent Cases: Torts
Statutory Violation Labeled Negligence Per Se
Statutory Violation Labeled Negligence Per Se
Indiana Law Journal
Notes and Comments: Torts
Swift V. Tyson Overruled, Erle A. Kightlinger
Swift V. Tyson Overruled, Erle A. Kightlinger
Indiana Law Journal
No abstract provided.
The Duty To Control The Conduct Of Another, Posey M. Kime, Fowler V. Harper
The Duty To Control The Conduct Of Another, Posey M. Kime, Fowler V. Harper
Indiana Law Journal
No abstract provided.