Law Commons^™

Restating International Torts: Problems Of Process And Substance In The Ali's Third Restatement Of Torts, Nancy J. Moore

Faculty Scholarship

The American Law Institute’s Third Restatement of Torts was initially conceived as a series of separate projects, each with its own reporters. From 1998 through 2010, the ALI completed and published three different segments: Products Liability, Apportionment of Liability, and Liability for Physical and Emotional Harm. Initially, the ALI did not intend to restate the intentional torts, believing that the Second Restatement’s treatment of these torts was clear and largely authoritative. It was ultimately persuaded that there were numerous unresolved issues that needed to be addressed. As a result, it authorized a new project on Intentional Torts---a project that is …

Concurrent Liability In Tort And Contract, Yihan Goh, Man Yip

Research Collection Yong Pung How School Of Law

This articleexamines the understanding of concurrent liability in tort and contract,through a detailed analysis of the interplay, intersection and independence of thelaw of torts and the law of contract. The central argument that will beadvanced is that the present understanding of the ‘incident rules’ inconcurrent liability in tort and contract, such as the applicable rules ofremoteness or limitation, is inconsistent with the rationale for concurrencelaid down in Henderson v MerrettSyndicates Ltd. Rather than analyse concurrence as a single situation, thatis, conceiving it as a contest between rules of tort or contract rules, we arguethat the better way forward is to …

Delucchi V. Songer, 133 Nev. Adv. Op. 42 (June 29, 2017), Krystina Butchart

Nevada Supreme Court Summaries

No abstract provided.

Pizarro-Ortega V. Cervantes-Lopez, 133 Nev. Adv. Op. 37 (June 22, 2017), Andrew Hart

Nevada Supreme Court Summaries

The court held that future medical expenses are a category of damages to which NRCP 16.1(a)(1)(C)’s computation requirement applies, and that a plaintiff is not absolved of complying with NRCP 16.1(a)(1)(C) simply because the plaintiff’s treating physician has indicated in medical records that future medical care is necessary.

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney

Faculty Scholarship

Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark Niles

Articles in Law Reviews & Other Academic Journals

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem ofprosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors arep rotectedfrom any liability arisingf rom these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application ofabsolute prosecutorial immunity, in part, by noting that other means of incentivizing appropriate prosecutorial conduct …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

All Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …

Outlining The Case For A Common Law Duty Of Care Of Business To Exercise Human Rights Due Diligence, Douglass Cassell

Journal Articles

This article outlines the case for a business duty of care to exercise human rights due diligence, judicially enforceable in common law countries by tort suits for negligence brought by persons whose potential injuries were reasonably foreseeable. A parent company’s duty of care would extend to the human rights impacts of all entities in the enterprise, including subsidiaries. A company would not be liable for breach of the duty of care if it proves that it reasonably exercised due diligence as set forth in the Guiding Principles on Business and Human Rights. On the other hand, a company’s failure to …

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The plaintiff in Tan Bee Hock v F G Builders Pte Ltd was riding a motorbike when he skidded on a metal plate placed by the defendantat the entrance to a condominium. The plaintiff sued for his injuries in negligence, nuisance, and breach of statutory duty. On the facts, Kannan Ramesh JC (as his Honour then was) found that there was nothing unsafe about the metal plate and dismissed the claims in nuisance and negligence. Having found that the defendants had not done anything unsafe, Ramesh JC also dismissed the breach of statutory duty action, and in doing so, observed …

Tort Law [2015], Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

Rish V. Simao, 132 Nev. Adv. Op. 17 (Mar. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that the District Court wrongly excluded evidence of low-impact defense when it required a biomechanical expert testify about the nature of the accident, erroneously interpreting Hallmark v. Eldgridge Instead, Hallmark requires sufficient foundation for admission of testimony and evidence, specifically excluding a biomechanical expert’s testimony under NRS 50.275. The Court additionally held that the District Court erred when it ultimately struck the defendant’s answer for violations of the pretrial order precluding defendant from raising a minor or low impact defense.

Nevada Dep’T Of Trans. V. Eighth Judicial Dist. Ct., 132 Nev. Adv. Op. 10 (Feb. 25, 2016), F. Shane Jackson

Nevada Supreme Court Summaries

The Court considered a petition for a writ of mandamus challenging a district court order denying a motion to dismiss. Petitioner Nevada Department of Transportation (“NDOT”) sought dismissal of a professional negligence claim filed against it on grounds that the complaint was not accompanied by an attorney affidavit and expert report as required by NRS 11.258, and when the court denied NDOT’s motion, it filed the instant petition. The Court denied the petition, holding that NDOT is not a design professional under NRS 11.2565(1)(a), and therefore the requirements of NRS 11.258 are inapplicable to NDOT since the action would not …

Discrimination Law: The New Franken-Tort, Sandra F. Sperino

Faculty Articles and Other Publications

This article was part of the Clifford Symposium in Tort Law. The article discusses how the Supreme Court has used tort law to define certain elements of discrimination law, but has not described all of the elements of this new tort. The article is the first one to try to piece together the new "tort" created by the Supreme Court.

Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Donald G. Gifford, Brian Jones

Faculty Scholarship

This Article presents an empirical analysis of how race, income inequality, the regional history of the South, and state politics affect the development of tort law. Beginning in the mid-1960s, most state appellate courts rejected doctrines such as contributory negligence that traditionally prevented plaintiffs’ cases from reaching the jury. We examine why some, mostly Southern states did not join this trend.

To enable cross-state comparisons, we design an innovative Jury Access Denial Index (JADI) that quantifies the extent to which each state’s tort doctrines enable judges to dismiss cases before they reach the jury. We then conduct a multivariate analysis …

A Curious Motion: The Uncertain Role Of Anti-Slapp Statutes In Federal Courts, Markus A. Brazill

Prize Winning Papers

No abstract provided.

Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

Culpable participation in a fiduciary's breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as "aiding-and abetting" liability. What's controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

Fiduciary Breach, Once Removed, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Response To Keeping Cases From Black Juries: An Empirical Analysis Of How Race, Income Inequality, And Regional History Affect Tort Law, Jennifer Wriggins

Faculty Publications

Issues of race and racism in the U.S. torts system continue to deserve much more attention from legal scholarship than they receive, and Keeping Cases from Black Juries is a valuable contribution. Studying racism as it infects the torts system is difficult because explicit de jure exclusions of black jurors are in the past; race is no longer on the surface of tort opinions; and court records do not reveal the race of tort plaintiffs, defendants, or jurors. Yet it is essential to try and understand the workings of race and racism in the torts system. The authors pose a …

Briefing Book: Tort Litigation By The Numbers. Center For Justice And Democracy, Joanne Doroshow, Emily Gottlieb

Other Publications

The Center for Justice & Democracy at New York Law School released its new briefing book, TORT LITIGATION: BY THE NUMBERS. The book highlights the latest information and statistics on tort (personal injury) suits across the country, based largely on recent statistics from the National Center for State Courts (NCSC),[1] the U.S. Department of Justice and other research institutions. Principal authors of the briefing book are Emily Gottlieb, CJ&D’s Deputy Director for Law and Policy, and Joanne Doroshow, CJ&D Executive Director. Said Doroshow, “This briefing book shows that injured Americans hardly ever sue wrongdoers for their injuries, and when they …

Copyright And Tort As Mirror Models: On Not Mistaking For The Right Hand What The Left Hand Is Doing, Wendy J. Gordon

Faculty Scholarship

No abstract provided.

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Is It Time To Adopt A No-Fault Scheme To Compensate Injured Patients?, Elaine Gibson

Articles, Book Chapters, & Popular Press

The tort system is roundly indicted for its inadequacies in providing compensation in response to injury. More egregious is its response to injuries incurred due to negligence in the provision of healthcare services specifically. Despite numerous calls for reform, tort-based compensation has persisted as the norm to date. However, recent developments regarding physician malpractice lead to consideration of the possibility of a move to “no-fault” compensation for healthcare-related injuries. In this paper, I explore these developments, examine programs in various foreign jurisdictions which have adopted no-fault compensation for medical injury, and discuss the wisdom and feasibility of adopting an administratively-based …

Piroozi V. Eighth Jud. Dict. Ct., 131 Nev. Adv. Op. 100 (Dec. 31, 2015), Jessie Folkestad

Nevada Supreme Court Summaries

Real parties in interest, Hurst and Abbington sought and obtained a pretrial order from the district court barring petitioners, Dr. Piroozi and Dr. Blahnik, from arguing comparative fault of settled defendants at trial and including those defendants’ names on the verdict forms. In granting the Writ of Mandamus filed by the petitioners, the Supreme Court of Nevada resolved a conflict between NRS 41.141(3) and NRS 41A.045, holding that NRS 41A.045 preempts NRS 41.141(3) and entitles a defendant to argue the percentage of fault of settled defendants at trial and to include the settled defendant’s names on the jury verdict form.

Harrison V. Roitman, 131 Nev. Adv. Op. 92 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that absolute immunity applies to party-retained expert witnesses as well as court appointed witnesses. Party-retained expert witnesses have absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

Accessory Liability In Tort And Equity, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Unlike the position in criminal law, there does not currently exist a general doctrine of accessory liability in civil law. Thus, a person may be liable as an accessory in equity for dishonestly assisting with a breach of trust, but there is no tort for dishonest assistance. Rather, one who participates in another's tort will only be liable if he is a joint tortfeasor acting pursuant to a common design with the primary tortfeasor. This article examines the reasons for this divergence and evaluates the case for their assimilation. It observes that, contrary to common perception, the scope of participatory …

Newsroom: Logan On Drone Law, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Frazier V. Drake, 131 Nev. Adv. Op. 64 (Sep. 3, 2015), Adrian Viesca

Nevada Supreme Court Summaries

The Court of Appeals determined that (1) when three of the good-faith Beattie factors weigh in favor of the party that rejected the offer of judgment, the reasonableness of the fees requested by the offeror becomes irrelevant, and cannot, by itself, support a decision to award attorney fees to the offeror and (2) expert witness fees in excess of $1,500 now have factors to take into consideration in awarding such fees.