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Government Responsibility For Constitutional Torts, Christina B. Whitman

Articles

This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …

United States V. Johnson, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

The Past And Future Of Constitutional Torts: From Statutory Interpretation To Common Law Rules, Michael L. Wells

Scholarly Works

The cause of action for damages to redress violations of constitutional rights is now firmly established in our law. As recently as 1960, such constitutional tort suits were rare and attracted little attention from scholars. Today, they are a major part of the work of the federal courts and the academic literature is constantly growing. This change can be partly attributed to the expansion of constitutional rights in the 1960s and 1970s, and partly to the 1961 case of Monroe v. Pape. In Monroe, the Supreme Court revived a long-neglected, ninety-year-old statute, 42 U.S.C. 1983, making it the …

Observations On Personal Injury Law, Stephen J. Werber

Law Faculty Articles and Essays

When I originally came to Ohio in 1970, I was surprised to find that the Ohio state courts lagged considerably behind other states in the development of personal injury law and especially product liability law. Under the leadership of Chief Justice Frank Celebrezze, the court's position was re-oriented. With decisions adopting and liberally defining strict liability, the court took a major step. Shortly thereafter, the court ruled that neither the Ohio Constitution nor any Ohio legislation insulated an employer from liability to employees for intentional torts. These, and other changes, have moved Ohio to the forefront of legal development in …

Respect For Law & Man: The Tort Law Of Chief Justice Kenison, David G. Owen

Faculty Publications

No abstract provided.

Draft Of Justice Rehnquist's Commitment To The Court And Its Implications - 1986, Wendy J. Gordon

Scholarship Chronologically

This Article will analyze the course to which Rehnquist seems to have committed the court, and examine its implications. Rehnquist starts with a notion of deliberateness (a federal concept that he draws out of the notion of deprivation) On its face, this seems to call for a new federal common law of torts.

Draft Of The Constitutionalization Of Intentional Torts - 1986, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court has often faced the question of whether an individual who alleges that he has been injured by a state or local official or by a local governmental entity, can bring a constitutional tort action under section 1983 when state doctrines of sovereign or official immunity would make it impossible for the individual to prosecute an ordinary tort suit in the relevant state court. The Court has consistently held that when an official violates a substantive provision of the Constitution, only an immunity that is consistent with the purpose of section 1983 and the Consitution can be tolerated.

Draft Of The Intent In Private Tort Law - 1986, Wendy J. Gordon

Scholarship Chronologically

These points can be best understood by bifurcating "intent" into its two components: state of mind (advertence) and the object to which the defendant's state of mind is directed.

Draft Of The Incoherence Of Intentional Torts And Section 1983 - 1986, Wendy J. Gordon

Scholarship Chronologically

The Supreme Court has often faced the question of whether a person who alleges that a state or local official has caused him injury, can bring a constitutional tort action under section 1983 when the state doctrine of sovereign or official immunity makes it impossible for the injured person to prosecute an ordinary tort suit in the relevant state court.

Joint Hearing On Proposition 51, Senate Committee On Judiciary, Assembly Committee On Judiciary

California Joint Committees

No abstract provided.

Lecture Material For Advanced Torts - 1986, Wendy J. Gordon

Scholarship Chronologically

This assumes. of course, the defendant wants a speedy trial and is not intentionally hindering the Government's attempt to provide one. That assumption may be open to question in this case. The majority points out that respondents' strategically timed demands (or a speedy trial run somewhat hollow in light of respondents; overall behavior during the litigation.

Agreements Changing The Forum For Resolving Malpractice Claims, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Mining With Mr. Justice Holmes, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

Torts (Annual Survey Of Michigan Law, June 1, 1984 - May 31, 1985), Lawrence C. Mann

Law Faculty Research Publications

Areas of particular significance during the Survey period include products liability and governmental immunity. In the area of products liability, the Michigan Supreme Court declined to determine whether a manufacturer of birth control pills has a duty to warn the ultimate user, stating that this determination is best left to the legislature. The court's reluctance to rule in the area of products liability for drugs sharply contrasted with its willingness to abolish implied warranty as a theory of liability for design defects. In the area of governmental immunity, the supreme court restructured the governmental immunity doctrine to shield state and …

Medical Malpractice: A Time For More Talk And Less Rhetoric, Robert M. Ackerman

Law Faculty Research Publications

No abstract provided.

Interspousal Tort Immunity In Montana, Carl W. Tobias

Law Faculty Publications

Interspousal tort immunity has a lengthy, rich, and interesting history. But since 1970, courts and legislatures have been increasingly willing to abolish immunity, transforming it into a minority rule which appears destined for widespread elimination by the year 2000. Montana's recent experience is typical. In 1979, the Legislature abolished the rule for intentional torts. However, the Montana Supreme Court has retained the doctrine in the negligence context. The court has recently agreed to reconsider negligence immunity and, should it refuse to change the rule, the Legislature may well address the issue. Thus, it is now appropriate to analyze whether Montana …

Civil Practice: Comparative Negligence, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

Recent decisional law by the Court of Appeals has placed new limits on the applicability of article 14-A to some assumption of risk cases, to matters involving some labor law violations, and to violations of legal prohibitions. These limitations are important to the practitioner representing clients who seek to benefit from New York's comparative negligence statute.

The Fault With Comparative Fault: The Problem Of Individual Comparisons In A Modified Comparative Fault Jurisdiction, Michael K. Steenson

Faculty Scholarship

Minnesota courts have interpreted the Minnesota Comparative Fault statute as requiring comparison of a plaintiff's negligence with the individual negligence of each defendant. Exceptions to this rule involve joint venture cases. This Article examines the individual comparison rule and explores an alternative rule which provides for a comparison of the plaintiff's negligence with the aggregate negligence of the defendants.

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Faculty Publications

No abstract provided.

Product Liability In The Sixth Circuit: 1984-1985, Stephen J. Werber

Law Faculty Articles and Essays

The Sixth Circuit, as other federal courts, is deciding a growing number of product liability cases. The court has been required to carefully explore state substantive law in such complex areas as comparative fault and foreseeability. Several of the recent cases have required application of difficult facts to recognized legal principles. In the following article Professor Werber analyzes key decisions against applicable state law and suggests areas in which the court has applied that law in manners both consistent with, and contrary to, state law. Professor Werber is critical of the court's Erie determination that the Ohio Supreme Court would …

Manufacturers' Or Marketers' Liability For The Criminal Use Of Saturday Night Specials: A New Common Law Approach--Kelley V. R.G. Industries, 497 A.2d 1143 (Md. 1985), Matthew Steffey

Journal Articles

No abstract provided.

Statements Of Fact, Statements Of Opinion, And The First Amendment, Jeffrey E. Thomas

Faculty Works

No abstract provided.

When Doctrines Collide: Corporate Negligence And Respondeat Superior When Hospital Employees Fail To Speak Up, I. Trotter Hardy

Faculty Publications

No abstract provided.

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

While the last several years have witnessed significant change in the field of tort law, viewed as advancement by some and regression by others, 1985 was a relatively stable year, at least in the courtroom. With a sometimes real, sometimes imagined, crisis in the liability insurance field, the drive to change, reform, improve, and re-package the law of civil wrongs has been in full swing. A myriad of legislative proposals followed a continued public debate, fueled by high pressure advertising campaigns, about the societal cost of the common law tort system. Local governments threatened to close parks and police departments; …

Surrogate Immunity: The Government Contract Defense And Products Liability, Richard C. Ausness

Law Faculty Scholarly Articles

The government contract defense is an affirmative defense that shields a manufacturer from liability if the product causing injury complied strictly with design specifications set forth in a government procurement contract. The defense was first used by public works contractors to bar claims against them for damage to land and other property. However, in recent years, product manufacturers have invoked the government contract defense to avoid liability to third parties for defectively designed products supplied to the government.

Despite widespread judicial acceptance of the government contract defense in products liability litigation, a number of issues are still being hotly debated. …

Apportionment In Kentucky After Comparative Negligence, John M. Rogers

Law Faculty Scholarly Articles

Adoption of comparative negligence gives juries the task of allocating fault between a plaintiff and a defendant when both were negligent and both caused the plaintiff's injury. A logical corollary must be that juries are theoretically and practically able to make such an allocation. If so, it follows that juries are able to make such an allocation among multiple defendants, each of whom was found to be both negligent and a cause of the plaintiff's injury. The judicial adoption of comparative negligence in Kentucky therefore requires a reexamination of the rules applicable to multiple tortfeasors. Cases decided since the adoption …

Understanding The Plaintiff's Attorney: The Implications Of Economic Theory For Private Enforcement Of Law Through Class And Derivative Actions, John C. Coffee Jr.

Faculty Scholarship

Probably to a unique degree, American law relies upon private litigants to enforce substantive provisions of law that in other legal systems are left largely to the discretion of public enforcement agencies. This system of enforcement through "private attorneys general" is most closely associated with the federal antitrust and securities laws and the common law's derivative action, but similar institutional arrangements have developed recently in the environmental, "mass tort," and employment discrimination fields. The key legal rules that make the private attorney general a reality in American law today, however, are not substantive but procedural – namely, those rules that …