Law Commons^™

The "Accident Network": A Network Theory Analysis Of Proximate Causation, Anat Lior

Marquette Law Review

In torts, proximate causation, or legal cause, examines whether harmful negligent conduct is “closely enough related” to the damages that ensue. Torts professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of the act of it being thrown. The stone tossed into the pond, i.e., a negligent act, created an effect which perpetuated via ripples to a long distance, forever changing the entire pond, i.e., causing close and far damages. Can all of those affected by the negligent …

Making Preconception Tort Theory Crisper, Mark Strasser

Marquette Law Review

More and more individuals seeking to expand their families make use of

someone else’s gametes to help create a child. Unsurprisingly, those

considering the use of donated or purchased gametes often seek reassurance

that the use of those gametes will not create an increased risk that a child

thereby produced will have a severe disease. Sometimes, because of negligence

or recklessness, gametes are used that result in children having severe disease

where that outcome would have been avoided though the use of reasonable

care. Regrettably, courts addressing whether liability may be imposed in such

cases have sometimes misunderstood and misapplied …

The Burdens Of All: Progressive Origins Of Accident Cost Socialization In Tort Law, 1870-1920, Joseph A. Ranney

Marquette Law Review

Scholars who have studied the Progressive Movement’s contributions to

American law have paid little attention to its impact on tort law. This Article

helps fill the gap by examining the ways in which Progressivism shaped the rise

of employer liability law, workers compensation, and comparative negligence

during the late-nineteenth and early-twentieth centuries. The Article places

these reforms within the broader social history of American tort law—a

gradual, often tortuous transition from free-labor beliefs that the law should

encourage personal responsibility and economic growth above all else to a

realization that injuries are an unavoidable cost of economic modernization,

accompanied by …

When Food Is A Weapon: Parental Liability For Food Allergy Bullying, D'Andra Millsap Shu

Marquette Law Review

Food allergies in children are rising at an alarming pace. Increasingly, these children face an added threat: bullies targeting them because of their allergies. This bullying can take a life-threatening turn when the bully exposes the victim to the allergen. This Article is the first major legal analysis of food allergy bullying. It explores the legal system’s failure to adequately address the problem of food allergy bullying and makes the case for focusing on the potential tort liability of the bully’s parents. Parents who become aware of their child’s bullying behavior and fail to take adequate steps to stop it …

Time To Act: Correcting The Inadequacy Of Youth Concussion Legislation Through A Federal Act, Lance K. Spaude

Marquette Law Review

Concussions in sports are inevitable. Although an increased focus on concussions in youth sports has improved understandings, the prevalence of concussions in youth sports, the health and safety dangers they pose, and the legal liability they create are still relative unknowns. Despite remaining unknowns, a greater understanding of the long-term effects of concussions and the increased dangers in head impacts in youth athletics in recent years has resulted in lawsuits against the youth coaches, schools, and state athletic associations for athlete injuries suffered as a result of repetitive head trauma and concussions.

This Comment focuses on the need for federal …

Can We Forgive Those Who Batter? Proposing An End To The Collateral Consequences Of Civil Domestic Violence Cases, Joann Sahl

Marquette Law Review

Domestic violence is the most common tort committed in our country, involving nearly 1.3 million victims. When a domestic violence incident occurs, the press regularly reports it. Highlighted in these articles is the name of the perpetrator. Perpetrators identified as committing an act of domestic violence face public outrage, contempt, and stigma. This is particularly true if a court determines that the act of domestic violence necessitates a civil protection order (CPO) that bars the perpetrator from having any contact with the victim. Nearly 1.2 million people receive a CPO each year. More people use this civil remedy than those …

The Economic Loss Doctrine: Intrinsic Or Extrinsic Fraud, Ralph Anzivino

Marquette Law Review

The economic loss doctrine provides that when a product is sold and results in economic loss for the buyer (no property or personal injury), the buyer’s sole remedy is to sue for breach of contract, not in tort. The two exceptions to the economic loss doctrine are contracts that are predominately for services and contracts where a party is fraudulently induced to enter into the contract.

Fraudulent inducement occurs when one party either fails to disclose a material fact or knowingly misrepresents a significant fact, and thereby induces the other party to enter into a contract. The fraudulent inducement, however, …

The Diffusion Of Doctrinal Innovations In Tort Law, Kyle Graham

Marquette Law Review

This Article examines the spread of “successful” common-law doctrinal innovations in the law of torts. Its analysis reveals recurring influences upon and tendencies within the diffusion of novel tort doctrines across the states. The studied diffusion patterns also document a trend toward common-law doctrinal “stabilization” over the past quarter-century. As detailed herein, this stabilization owes in part to altered adoption dynamics associated with the ongoing shrinkage and fragmentation of the common-law tort dockets entertained by state supreme courts. Prevailing conditions will make it difficult, this Article concludes, for even well-received common-law doctrinal innovations of the future to match the rapid …

Enduring Doctrine: The Collateral Source Rule In Wisconsin Injury Law, Joseph P. Poehlmann

Marquette Law Review

When the common law collateral source rule first arose in the area of tort law over one hundred years ago, only a minority of individuals maintained health insurance coverage to protect against loss in the event that a negligent actor injured them. Today, however, the vast majority of Americans are covered. Because of this change in the landscape of insurance coverage, many jurisdictions have abrogated or greatly eroded the collateral source rule under the belief that the rule no longer holds a justified role in personal injury litigation. Wisconsin, however, continues to follow the common law form of the rule …

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

Marquette Law Review

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 …

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

Marquette Law Review

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 …

Strict Products Liability At 50: Four Histories, Kyle Graham

Marquette Law Review

This Article offers four different perspectives on the strict products- liability “revolution” of a half-century ago. One of these narratives relates the predominant assessment of how this movement coalesced and spread across the states. The three alternative histories introduced by this Article view the shift toward strict products liability through populist, practical, and contingent lenses, respectively. The first of these narratives considers the contributions that plaintiffs and their counsel made toward this change in the law. The second focuses upon how a formerly common, but now moribund, type of products-liability lawsuit framed the argument for strict liability as a superior …