Law Commons^™

No-Fault Remediation Of Mtbe, Daniel Velez

William & Mary Environmental Law and Policy Review

No abstract provided.

Will Big Tobacco Seek Bankruptcy Protection? A $145 Billion Verdict Poses The Question, Mark Gottlieb, Richard A. Daynard

William & Mary Environmental Law and Policy Review

No abstract provided.

Lawyers' Ethics And Fiduciary Obligation In The Brave New World Of Aggregative Litigation, Lester Brickman

William & Mary Environmental Law and Policy Review

No abstract provided.

Lessons Learned From Flint, Michigan: Managing Multiple Source Pollution In Urban Communities, Emily L. Dawson

William & Mary Environmental Law and Policy Review

No abstract provided.

Proposal For Linking Culpability And Causation To Ensure Corporate Accountability For Toxic Risks, Thomas O. Mcgarity

William & Mary Environmental Law and Policy Review

No abstract provided.

The Role Of Causation In Science As Law And Proposed Changes In The Current Common Law Toxic Tort System, Clifford Fisher

Buffalo Environmental Law Journal

No abstract provided.

The Eggshell Skull Rule And Related Problems In Recovery For Mental Harm In The Law Of Torts, Dr. J. Stanley Mcquade

Campbell Law Review

The theme of this article is the place, actual and proposed, of the "thin skull" rule in relation to mental harm.

Tort Law—Spoliators Beware, But Fear Not An Independent Civil Suit. Goff V. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000)., Margaret A. Egan

University of Arkansas at Little Rock Law Review

No abstract provided.

Introduction: Symposium 2001: Toxic Torts: Issues Of Mass Litigation, Case Management, And Ethics, Erin O'Callaghan, Anne C. Dowling

William & Mary Environmental Law and Policy Review

No abstract provided.

Forum Allocation In Toxic Tort Cases: Lessons From The Tobacco Litigation And Other Recent Developements, Mark C. Weber

William & Mary Environmental Law and Policy Review

No abstract provided.

Holding Tortfeasors Accountable: Apportionment Of Enhanced Injuries Under Washington's Comparative Fault Scheme, Ryan P. Harkins

Washington Law Review

The enhanced-injury doctrine imposes a negligence-based duty to reasonably minimize the foreseeable risk of injury enhancement in the event of primary accidents, regardless of their cause. When apportioning responsibility for enhanced injuries under principles of comparative fault, a majority of courts outside of Washington use a plaintiffs fault in causing the primary accident to reduce recovery for enhanced injuries. A minority of courts, however, rule that because the enhanced-injury doctrine presupposes the occurrence of primary accidents, primary fault is legally irrelevant to apportionment of enhanced injuries. Washington courts have not addressed this issue. This Comment argues that Washington courts should …

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus …

Tortious Toxics, Lisa Heinzerling, Cameron Powers Hoffman

William & Mary Environmental Law and Policy Review

No abstract provided.

The End Of The Defendant Advantage In Tobacco Litigation, Howard M. Erichson

William & Mary Environmental Law and Policy Review

No abstract provided.

Intentional Infliction Of Emotional Distress In Divorce: New York's Reluctance To Enter The Fray, Gwen Seaquist, Eileen Kelly

Buffalo Women's Law Journal

No abstract provided.

Deterrence: The Legitimate Function Of The Public Tort, Thomas C. Galligan, Jr.

Washington and Lee Law Review

No abstract provided.

The Effect Of The Mandated Discount Rate On The Value Of Wrongful Death Awards In Georgia, Charles Dominique

Mercer Law Review

This Article examines Georgia tort law regarding wrongful death. Tort has been described as the body of law that deals with "compensable wrongs that do not arise from breach of contract and cannot be remedied by an induction against future inference."' When a tort has been proven, two types of damages can be incurred-compensatory and punitive. Compensatory damages, as the phrase implies, compensate the plaintiff for damages suffered at the hands of the defendant. The goal of compensatory awards is to compensate and deter but not to punish the wrongdoer. The theories behind compensatory damages are that deterrence encourages potential …

Albany Urology Clinic, P.C. V. Cleveland: Why You Should Always Ask Your Urologiest If He Is A Cocaine Addict, Kate Sievert Cook

Mercer Law Review

In Albany Urology Clinic, P.C. v. Cleveland,'the Georgia Supreme Court ruled that neither state common law nor Georgia's informed consent statutes require physicians affirmatively to disclose negative personal life factors, such as illegal drug use, before treating patients. Consequently, patients injured during certain surgical or diagnostic procedures are severely impeded from pursuing an action of fraud or battery against physicians who fail to divulge their illegal drug use during the course of their patients' medical treatment.

I Am Having A Flashback ... All The Way To The Bank: The Application Of The Thin Skull Rule To Mental Injuries - Poole V. Copland, Inc., Scott M. Eden

North Carolina Central Law Review

No abstract provided.

The Hand Formula In The Draft "Restatement (Third) Of Torts": Encompassing Fairness As Well As Efficiency Values, Kenneth W. Simons

Vanderbilt Law Review

The definition of negligence in the draft Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft") employs a version of the Learned Hand formula. According to the chief Reporter, Professor Gary Schwartz, who is responsible for this draft, the Hand formula can accommodate both economic and fairness accounts of negligence law.

Is he correct? I will argue that he is, and that the Hand formula, suitably defined and explained, is indeed an appropriate general criterion for negligence. At the same time, however, the current Discussion Draft is deficient in some respects. It does not adequately allay the fears of …

The Implications Of Kumho Tire: Applying Daubert Analysis To Warning-Label Testimony In Products Liability Cases, Sara K. Ledford

Indiana Law Journal

No abstract provided.

The Passing Of Palsgraf?, Ernest J. Weinrib

Vanderbilt Law Review

According to a well-known story, Cardozo's Palsgraf opinion' was born in his attendance at the discussion of the Restatement (First) of Torts. If the formulations now proposed for the Restatement (Third) of Torts (proposed "Restatement") stand, the Palsgraf case--indeed the whole notion of duty as a viable element of negli- gence analysis-- will effectively be dead. The proposed Restatement suggests that "duty is a non-issue" confined to unusual cases where "special problems of principle or policy... justify the withholding of liability." Duty has then merely a negative significance. It refers not to an element necessary to establish the defendant's liability, …

Purpose, Belief, And Recklessness: Pruning The "Restatement" (Third)'S Definition Of Intent, Anthony J. Sebok

Vanderbilt Law Review

The concept of intent has always been at the root of some of tort law's most basic categories. The primitive action for trespass, for example, assumed that, at the very least, the trespasser intended to perform the act that resulted in the touching about which the plaintiff complains; a man thrown into another's close is not a trespasser. After the development of the modern categories of tort law, trespass helped form the foundation of the category of intentional torts. Sometimes, though, the very fact that a great deal of effort is required to do something is evidence of controversy or …

The Trouble With Negligence, Kenneth S. Abraham

Vanderbilt Law Review

The concept of negligence dominates tort law. Most tort cases are about negligence. Much tort law scholarship over the past several decades has been about the meaning of negligence. The new draft Restatement (Third) of Torts: General Principles ("Discussion Draft") devotes the vast majority of its first volume to negligence. And the idea of negligence as a liability standard is highly attractive to both the courts and commentators.

All the attention that negligence receives is not surprising, given the unattractiveness of the alternatives. Imposing liability only when the injurer intended harm seems unduly limited, in that it absolves injurers of …

The Restatement Of Torts And The Courts, Jack B. Weinstein

Vanderbilt Law Review

Primarily through tort law the courts compensate those injured by others. Secondary aspects of our work such as deterrence or forcing tortfeasors to pay the full social costs of their activities are minor and collateral. For jurors focusing on compensation, tort law has only two operative elements: damage and cause. It is the law professor and the judge, through decisions on motions and instructions, who are the main Restatement consumers. Emphasizing mass torts, I will make three points relevant to those considering the health of tort law.

First: Tort law in its least inhibitory principle is useful be- cause of …

The Restatement (Third) And The Place Of Duty In Negligence Law, John C.P. Goldberg, Benjamin C. Zipursky

Vanderbilt Law Review

A prima facie case of negligence has four elements: duty, breach, causation, and injury. In plain English, a person suing for negligence alleges that the defendant owed her a duty of reasonable care and injured her by breaching that duty. Every state adheres to the four-element account,' with perhaps two exceptions. That ac- count was prominent in the various editions of Prosser's treatise, and is likewise prominent in Professor Dobbs' successor treatise. Leading casebooks also feature the four-element formula.

Given the widespread adoption of the four-element test, one would have expected to encounter it somewhere in the two drafts of …

The Theory Of Tort Doctrine And The Restatement (Third) Of Torts, Keith N. Hylton

Vanderbilt Law Review

Though at times a source of controversy, the American Law Institute performs an enormous public service through its Restatement projects. One of the initial hurdles any such project confronts is whether it should aim to clarify and illuminate the law, or to push the law in a certain direction. I think the Restatement project is most productive when it aims to clarify and illuminate rather than guide or control the development of legal doctrine. Efforts to guide and control risk producing questionable interpretations of the aw, undermining the value of the Restatement in the long run. Fortunately, the Restatement of …

Duty Rules, David Owen

Vanderbilt Law Review

Few principles are more fundamentally important to modern society than duty. As obligation to oneself and others-to one's family, friends, neighbors, business associates, clients, customers, community, nation, and God-duty is the thread that binds humans to the world, to the communities in which they live. Duty constrains and channels human behavior in a socially responsible way before the fact, and it provides a basis for judging the propriety of behavior thereafter. Duty flows from millennia of social customs, philosophy, and religion. And duty is the overarching concept of the law.

Duty is central to the law of torts. Negligence law …

Cost-Benefit Analysis And The Negligence Standard, Stephen R. Perry

Vanderbilt Law Review

In his commentary on the proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ("Discussion Draft"), Stephen Gilles does an excellent job of analyzing the role of cost- benefit analysis in the characterization of reasonable care in previous restatements, and also of tracing the relationship between that characterization and contemporaneous scholarly work. This is a necessary prelude to any attempt to reformulate the content of the negligence standard in a Restatement (Third), and I think that Gilles' work will prove to be exceptionally helpful in that regard. Given the limited space I have available for my own comments, however, I …

Intent And Recklessness In Torts: The Practical Craft Of Restating Law, James A. Henderson, Jr., Aaron D. Twerski

Vanderbilt Law Review

However one frames the concepts of intent and recklessness in a Restatement, they must be kept generic, stable, and endogenous. By "generic" we mean that the concepts should not be tied to any single tort, or family of torts. For example, one frequently encounters philosophical treatments of tort that automatically link intent with the causing of tangible harms, such as personal injury and property damage. Apparently, intent and harm are coupled in this manner in order to contrast intentional infliction of harm with negligently harmful conduct. But to inextricably link intent with tangible harm in a Restatement of Torts would …