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Full-Text Articles in Law
The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer
The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer
University of Michigan Journal of Law Reform
Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect.
This Article fills …
Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman
University of Michigan Journal of Law Reform
The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first …
Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel
Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel
University of Michigan Journal of Law Reform
Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages.
Though the use of demographic features, such as race, to …
Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli
Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli
University of Michigan Journal of Law Reform
Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory. Starting from a position of support for the mixed-pluralistic thesis, this Article first …
Comfortably Numb: Medicalizing (And Mitigating) Pain-And-Suffering Damages, Lars Noah
Comfortably Numb: Medicalizing (And Mitigating) Pain-And-Suffering Damages, Lars Noah
University of Michigan Journal of Law Reform
Among the compensatory damages that a plaintiff may recover in tort litigation, awards for pain and suffering have attracted the most attention. Attorneys, judges, legislators, and scholars from various disciplines long have struggled to measure and make sense of this aspect of compensation for tortiously caused injuries. With the steady expansion of what falls within the rubric of nonpecuniary damages and in the types of claims eligible for such awards, to say nothing of the growth in the absolute and relative size of this portion of compensatory awards, pain-and-suffering damages have become increasingly controversial.
Although it canvasses the competing arguments …
The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson
The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson
University of Michigan Journal of Law Reform
Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America. "Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, § 294 7, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured …
The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda
The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda
University of Michigan Journal of Law Reform
In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …
On Recovery In Tort For Pure Economic Loss, Eileen Silverstein
On Recovery In Tort For Pure Economic Loss, Eileen Silverstein
University of Michigan Journal of Law Reform
Pure economic loss is not considered a recoverable harm in tort law. Professor Silverstein asks, "Why not?"
Pain And Suffering Guidelines: A Cure For Damages Measurement "Anomie", Frederick S. Levin
Pain And Suffering Guidelines: A Cure For Damages Measurement "Anomie", Frederick S. Levin
University of Michigan Journal of Law Reform
This Note argues that adapting the criminal sentencing guidelines systems in use in several states to the personal injury context would provide appropriate standards for measuring pain and suffering damages. Part I explores why present methods for measuring pain and suffering are objectionable. A description of the proposed method for developing guidelines is provided in Part II. Part II explores the use of guidelines in criminal sentencing and the analogy between sentencing decisions and assessment of damages for nonpecuniary loss. Part II also describes how to develop and implement guidelines for assessing pain and suffering damages. Part III examines why …
A Proposal To Cap Tort Liability: Avoiding The Pitfalls Of Heightened Rationality, Richard S. Kuhl
A Proposal To Cap Tort Liability: Avoiding The Pitfalls Of Heightened Rationality, Richard S. Kuhl
University of Michigan Journal of Law Reform
This Note sets forth a model statute that limits high damage awards, yet will withstand the rigors of judicial scrutiny. After presenting a brief background of the medical malpractice crisis in Part I, Part II outlines the standards of equal protection review that the courts are presently using. The Note then focuses on the constitutional challenges to caps on medical malpractice liability in Part III. Part IV discusses the values and interests that were found to be dispositive in the courts' decisions. Finally, after analyzing the criteria that must be met to ensure that a legislative limitation will survive judicial …
Medical Maloccurrence Insurance: A First Party No-Fault Insurance Proposal For Resolving The Medical Malpractice Insurance Controversy, Larry M. Pollack
Medical Maloccurrence Insurance: A First Party No-Fault Insurance Proposal For Resolving The Medical Malpractice Insurance Controversy, Larry M. Pollack
University of Michigan Journal of Law Reform
Part I of this Note examines the broad, underlying themes of tort theory and argues that, in general, the tort system's primary responsibility should be compensation, rather than deterrence of risk taking. In so far as the production of goods and services causes injury, such losses should be shared and spread as widely and proportionately as possible. Part II discusses the history and nature of the medical malpractice insurance crisis. Part III evaluates the numerous systemic solutions suggested by various commentators. Finally, Part IV proposes a new solution: first party, no-fault medical maloccurrence insurance (MMI).
Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards
Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards
University of Michigan Journal of Law Reform
Congress may soon enact the first complete revision of the United States bankruptcy laws in almost four decades. Among the numerous changes proposed by the legislature is a major alteration of the provability and dischargeability of tort claims asserted against the bankrupt's estate. This article will discuss the treatment of tort claims in the present Act and the changes to be made by the proposed Act, and will evaluate alternative approaches to compensating victims of bankrupt tortfeasors.
Developing "Tort" Standards For The Award Of Mental Distress Damages In Statutory Discrimination Actions, Harold J. Rennett
Developing "Tort" Standards For The Award Of Mental Distress Damages In Statutory Discrimination Actions, Harold J. Rennett
University of Michigan Journal of Law Reform
The relation between tort remedies and discrimination has been examined extensively, yet there has been little consideration of this relationship with respect to appropriate evidentiary standards for the award of mental distress damages in discrimination cases. This article will consider such standards. After briefly tracing the history of mental distress award standards in discrimination cases, this article will critically examine present compensatory approaches in such cases and suggest an alternative philosophy more consonant with tort compensation principles.
Punitive Damages Under Section 102 Of The Labor-Management Reporting And Disclosure Act, S. Thomas Wienner
Punitive Damages Under Section 102 Of The Labor-Management Reporting And Disclosure Act, S. Thomas Wienner
University of Michigan Journal of Law Reform
It is firmly established that in a suit brought under section 102, a union member may ordinarily recover compensatory damages for any injury proximately caused by a violation of Title I or section 609. The courts are divided, however, on the question of whether a plaintiff may be awarded punitive damages under section 102. This article will address that question by discussing the language and the legislative history of section 102, the conflicting decisions of the federal courts, and the relevant policy considerations.
Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case
Tort Liability Of Labor Unions For Picket Line Assaults, David R. Case
University of Michigan Journal of Law Reform
This article will discuss whether tort actions against unions for picket line assaults are preempted by the National Labor Relations Act, and if not preempted, what forums are available to hear such actions. This article will also examine the theories that have been used to hold unions liable for the assaults committed by their picketers. Included in this discussion will be an analysis of the policy considerations offered in support of the various theories of liability.