Law Commons^™

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

The Graying Of Products Liability Law: Paths Taken And Untaken In The New Restatement, David G. Owen

Faculty Publications

No abstract provided.

A World That Won't Stand Still: Enterprise Liability By Private Contract, William M. Sage, James M. Jorling

Faculty Scholarship

The purpose of this article is to help health care providers and insurers create such an approach by explaining the benefits and risks of voluntarily reassigning liability for medical injury along an enterprise liability model, and by outlining the legal and contractual elements that are required to do so successfully.

Liberty And Property: Lord Bramwell And The Political Economy Of Liberal Jurisprudence Individualism, Freedom, And Utility, David Abraham

Articles

No abstract provided.

Perceptions Of Civil Justice: The Litigation Crisis Attitudes Of Civil Jurors, Valerie P. Hans, William S. Lofquist

Cornell Law Faculty Publications

Public perceptions that the civil justice system is in crisis are apparently widespread, but little is known about the causes or correlates of such views. This article analyzes the litigation crisis attitudes of a sample of civil jurors. Like the public, jurors endorsed a number of statements suggesting that there is a litigation crisis. Factor analysis identified two independent components: general concern over excessive litigation, and criticism of the civil jury. Litigation crisis views were found in all demographic and attitudinal subgroups. However, attitudes about the civil justice system were related to the respondent's political efficacy, claims consciousness, belief in …

Foundations Of The Duty To Rescue, Steven J. Heyman

All Faculty Scholarship

No abstract provided.

A Sheep In Wolf's Clothing: Territorialism In The Guise Of Interest Analysis In Cooney V. Osgood Machinery, Inc, Aaron Twerski

Faculty Scholarship

No abstract provided.

Keeping The Pierringer Promise: Fair Settlements And Fair Trials, Peter B. Knapp

Faculty Scholarship

This article explores why Perringer releases have failed to promise fairness to the nonsettling defendant. For over thirty years, Pierringer releases have been part of the ebb and flow of civil litigation. In 1978, the Minnesota Supreme Court officially approved the use of Pierringer releases in Minnesota. When first adopted, the release seemed to promise something for everyone. The Pierringer release even offered a promise of fairness to the nonsettling defendant: Be assured that, no matter what the outcome of trial, you will pay no more than your “fair share” of the verdict. Unfortunately, however, largely because of the impact …

Punitive Damages Awards In Product Liability Litigation: Strong Medicine Or Poison Pill - Introduction, Aaron Twerski

Faculty Scholarship

No abstract provided.

The Business Judgment Rule: Meaningless Verbiage Or Misguided Notion?, Franklin A. Gevurtz

McGeorge School of Law Scholarly Articles

No abstract provided.

Critical Rules In Negotiating Sales Contracts: The Lawyer's Job, James J. White

Other Publications

In my experience, lawyers begin negotiating only after the business people have decided upon the description and quality of the product, the time of delivery, and the mode and amount of payment. The lawyers are left with the pathological problems--who gets what in case of trouble. Most of those problems relate to the seller's responsibility if the product does not conform to the contract or otherwise fails to please the buyer. These failures can cause economic loss to the buyer, economic loss to a remote purchaser, or personal injury or property damage to immediate or remote parties. Third parties may …

Tort Liability For Asbestos Removal Costs, Richard C. Ausness

Law Faculty Scholarly Articles

During the past twenty years, Congress and the general public have become increasingly aware of the health hazards caused by exposure to toxic substances. Consequently, Congress has enacted statutes, such as CERCLA, requiring parties who are responsible for toxic waste to clean up the toxic waste sites and to reduce the level of toxic chemicals in the environment. Asbestos is one toxic substance that government has targeted in particular. The federal government and many states have enacted laws requiring asbestos-containing materials to be segregated or removed from schools and public buildings.

Even when government regulations do not mandate specific abatement …

Individual And Institutional Responsibility: A Vision For Comparative Fault In Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

Since the adoption of strict products liability over the last thirty years, two problems of scope have received the most attention: how to define product defectiveness to which the liability attaches, and how to limit the potentially limitless liability through defenses. Much like the industries of the nineteenth century, product liability defendants of the twentieth century turned to the plaintiff's conduct as a main line of defense. Blaming the victim has historically been a powerful tool for tort defendants to evade responsibility for their conduct. This Article proposes that the defenses based on victim fault that have evolved in our …

A Punitive Damages Overview: Functions, Problems And Reform, David G. Owen

Faculty Publications

No abstract provided.

The Draft Ali Product Liability Proposals: Progress Or Anachronism?, Oscar S. Gray

Faculty Scholarship

No abstract provided.

A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly

Journal Articles

This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …

Universal Health Care And The Continued Reliance On Custom In Determining Medical Malpractice, James A. Henderson Jr., John A. Siliciano

Cornell Law Faculty Publications

No abstract provided.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

Torts-- Federal Preemption Of State Common Law-- Federal Cigarette Labeling & Advertising Act, Elizabeth Price Foley, Elizabeth C. Price

Faculty Publications

This case note examining Supreme Court's landmark preemption decision in Cipollone v. Liggett Group.

Comments To The Reporters And Selected Members Of The Consultative Group, Restatement Of Torts (Third): Products Liability, Howard C. Klemme

Publications

No abstract provided.

Proposed Revisions Concerning Products Liability Caveat Vendor, James J. White

Other Publications

Both industrial sellers and consumer sellers should look at proposals for revision of the sections relating to warranty liability in Article 2. Particularly important are the sections on warranty, express and implied, on third-party liability, disclaimers and limitation of remedy, notice, and statute of limitations. Using current law as a baseline, revised Article 2 increases sellers' liability in at least half a dozen ways and decreases it in no significant way.

The Recycling, Dismantling, And Destruction Of Goods As A Foreseeable Use Under Section 402a Of The Restatement (Second) Of Torts, Charles E. Cantú

Faculty Articles

The past thirty years have witnessed the significant expansion and transformation of products liability law. While much of the initial confusion regarding the application and interpretation of Section 402A of the Restatement (Second) of Torts has been settled, some problems remain.

One of these problem areas involves the allocation of liability for injuries resulting from the destruction, dismantling, and recycling of products whose useful lives have come to an end. In this situation, the law has evolved to provide a rule that imposes no liability upon the manufacturer. The courts have reasoned that individuals engaged in reclamation procedures are not …

A Process Theory Of Torts, Jay Tidmarsh

Journal Articles

This article is meant to reconcile two schools of intellectual thought regarding tort law, the conceptualist and the anti-conceptualist. It argues that torts must be understood as a system in perpetual process--forever indefinite and infinitely malleable in its precise theoretical, doctrinal and practical manifestations--yet ultimately bounded in its possibilities. It then defines the limits of torts law as a process that constantly regenerates the old face of tort theory, doctrine and practice into the new.

Purposeful Approach To Products Liability Warnings And Non-English-Speaking Consumers Notes, Thomas H. Lee

Faculty Scholarship

This Note examines the problems associated with the duty-towarn doctrine and the non-English-speaking consumer or product user. Part II explains the current duty-to-warn doctrine, emphasizing when a warning is required, to whom the warning must be directed, and how the warning must be given. Next, Part III examines state and federal language-specific statutes, constitutional provisions, and case holdings, emphasizing the most recent cases addressing product warning requirements for non-English-speaking plaintiffs. Part IV then outlines the risks to both product sellers and consumers of continuing the current haphazard approach and suggests a statutory solution to the doctrinal confusion, drawing from the …

Discontinuities, Causation, And Grady's Uncertainty Theorem, Stephen G. Marks

Faculty Scholarship

In a series of articles, Mark Grady considers the problem of discontinuity under a tort negligence regime. The discontinuity can be described as follows. A potential injurer who adopts the optimal level of precaution is completely shielded from liability under the negligence system even though accidents occur. A very small decrease in the level of precaution below the optimal level suddenly exposes the potential injurer to liability for those accidents. This discontinuity makes the expected cost of under-investment in precaution greater than the expected cost of overinvestment. In a world where there is uncertainty about the optimal level of precaution …

The Emerging Article 2: Remedies For Breach Of The Contract For Sale, Richard E. Speidel, James J. White

Other Publications

Article 2, Sales is being revised by a Drafting Committee of the National Conference of Commissioners on Uniform State Laws. To date, the Drafting Committee has held eight meetings and two more are scheduled for early 1995 . The first reading of revised Article 2 occurred at the annual meeting of NCCUSL in August, 1994. A target completion date for the Article 2 project is August, 1996 .

Annotated Torts Bibliography, Nancy Levit

Faculty Works

No abstract provided.

Joinder Of Tort Claims In Divorce Actions, Barbara Glesner Fines

Faculty Works

No abstract provided.

Solving The Judgment-Proof Problem, Kyle D. Logue

Articles

A tortfeasor who cannot fully pay for the harms that it causes is said to be "judgment proof." Commentators have long recognized that the existence of judgment-proof tortfeasors seriously undermines the deterrence and insurance goals of tort law. The deterrence goal is undermined because, irrespective of the liability rule, judgment-proof tortfeasors will not fully internalize the costs of the accidents they cause. The insurance goal will be undermined to the extent that the judgment-proof tortfeasor will not be able to compensate fully its victims and that first-party insurance markets do not provide an adequate response. Liability insurance can ameliorate these …

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …