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Torts

2014

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Full-Text Articles in Law

Summary Of Sadler V. Pacificare Of Nevada, Inc., 130 Nev. Adv. Op. 98, Hayley Miller Dec 2014

Summary Of Sadler V. Pacificare Of Nevada, Inc., 130 Nev. Adv. Op. 98, Hayley Miller

Nevada Supreme Court Summaries

The Court determined (1) when stating a claim for a negligence action in which medical monitoring is sought as a remedy, a plaintiff may satisfy the injury requirement by alleging that additional medical monitoring is reasonably required beyond the standard recommendations.


Filosofía De La Responsabilidad Extracontractual: Un Llamado Al Debate, Jorge Luis Fabra Dec 2014

Filosofía De La Responsabilidad Extracontractual: Un Llamado Al Debate, Jorge Luis Fabra

Jorge Luis Fabra Zamora

Recientemente se ha comenzado a hablar con fuerza de la “filosofía de la responsabilidad extracontractual” en Latinoamérica. La publicación de varias compilaciones de artículos, la traducción de uno de los textos fundacionales del área, y la publicación del primer libro con una contribución original al debate en español han hecho que este estudio filosófico se consolide un cuerpo académico por mérito propio. Sin embargo, a pesar de estos logros, la idea de una “filosofía de la responsabilidad extracontractual” puede sonar extraña al jurista práctico. Como señala Zipursky, desde la perspectiva de los jueces o abogados, la responsabilidad extracontractual –que se …


Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies Dec 2014

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …


Does Tort Law Empower?, Anthony J. Sebok Dec 2014

Does Tort Law Empower?, Anthony J. Sebok

Online Publications

Ori Herstein’s How Tort Law Empowers takes on the question of whether and how tort law empowers victims. Herstein presents himself as a friendly critic of civil recourse theory, and offers an amendment that he claims makes the theory both more plausible and less interesting. Like many friendly amendments, it is an offer that must be carefully examined before it is accepted.


Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski Dec 2014

Regulating In Foresight Versus Judging Liability In Hindsight: The Case Of Tobacco, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Potentially dangerous products, such as cigarettes, can be regulated through ex post liability or ex ante regulation. Both systems should reach the same result. In practice, however, cognitive biases that influence the liability system can produce incentives to take an excess of precautions. In particular, because people tend to see past events as more predictable than they really were, judges and juries will tend to find defendants who took reasonable care negligent or even reckless. As a consequence of these biases, a liability system can be more expensive than a regulatory system, both to potential defendants and to society. Cognitive …


Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski Dec 2014

Product-Related Risk And Cognitive Biases: The Shortcomings Of Enterprise Liability, James A. Henderson Jr., Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Products liability law has witnessed a long debate over whether manufacturers should be held strictly liable for the injuries that products cause. Recently, some have argued that psychological research on human judgment supports adopting a regime of strict enterprise liability for injuries caused by product design. These new proponents of enterprise liability argue that the current system, in which manufacturer liability for product design turns on the manufacturer's negligence, allows manufacturers to induce consumers into undertaking inefficiently dangerous levels or types of consumption. In this paper we argue that the new proponents of enterprise liability have: (1) not provided any …


Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski Dec 2014

Ex Post ≠ Ex Ante: Determining Liability In Hindsight, Kim A. Kamin, Jeffrey J. Rachlinski

Jeffrey J. Rachlinski

Participants in three conditions (foresight, hindsight, and a modified hindsight condition designed to ameliorate the hindsight effect) assessed whether a municipality should take, or have taken, precautions to protect a riparian property owner from flood damage. In the foresight condition, participants reviewed evidence in the context of an administrative hearing. Hindsight participants reviewed parallel materials in the context of a trial. Three quarters of the participants in foresight concluded that a flood was too unlikely to justify further precautions—a decision that a majority of the participants in hindsight found to be negligent. Participants in hindsight also gave higher estimates for …


The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues Dec 2014

The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues

Georgia Journal of International & Comparative Law

No abstract provided.


Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett Dec 2014

Accidental Suicide Pacts And Creditor Collective Action Problems: The Mortgage Mess, The Deadweight Loss, And How To Get The Value Back, Robert C. Hockett

Robert C. Hockett

Sustained economic recovery will remain elusive in America, post-crash, until principal is reduced on some 10-13 million underwater home mortgage loans across the nation. Yet in the case of privately securitized loans, these write-downs are all but impossible to carry out on the requisite scale because bubble-era securitization contracts, which now effectively function as suicide pacts among bondholders, would require collective action by millions of geographically dispersed passive investors in order to authorize write-downs or sales out of securitization trusts. The solution, this article suggests, is for state and municipal governments to use their eminent domain powers to buy up …


In Mourning Of Bereavement Damages, Iain Field Dec 2014

In Mourning Of Bereavement Damages, Iain Field

Iain Field

In most Australian jurisdictions, bereavement is not compensable in an action for wrongful death. Unless such loss can be shown to amount to a recognised psychiatric injury, it is also precluded from recovery in the law of negligence. But why must a plaintiff demonstrate some reaction to the death of a loved one that transcends mere grief before the civil law will compensate his or her loss? Are Australian jurisdictions unusual in precluding such awards, and can this exclusion be rationalised with the compensation of non-pecuniary loss (including bereavement) in other areas of the law?


A Dangerous Direction: Legal Intervention In Sexual Abuse Survivor Therapy, Cynthia Grant Bowman, Elizabeth Mertz Dec 2014

A Dangerous Direction: Legal Intervention In Sexual Abuse Survivor Therapy, Cynthia Grant Bowman, Elizabeth Mertz

Cynthia Grant Bowman

No abstract provided.


Una Experiencia Comparada Del Derecho Antitrust: La Defensa Passing-On (A Comparative Experience Of The Antitrust Law: The Passing-On Defence), Jesús A. Soto Dec 2014

Una Experiencia Comparada Del Derecho Antitrust: La Defensa Passing-On (A Comparative Experience Of The Antitrust Law: The Passing-On Defence), Jesús A. Soto

Jesús Alfonso Soto Pineda

RESUMEN: El artículo presenta la passing–on defence, como argumento de defensa de las empresas demandadas en el marco de procesos de reparación por daños y perjuicios surgidos de infracciones a las normas de libre competencia, haciendo referencia a las experiencias y actualidad de la figura en Estados Unidos y la Unión Europea, en busca de extraer el catálogo de beneficios e inconveniencias que apareja en la construcción de un sistema de defensa de la competencia que le acoja.

ABSTRACT: The article shows the passing–on defence, as an argument in favour of the cartel member in the liability process founded in …


Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente Dec 2014

Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente

Nevada Supreme Court Summaries

The voluntary payment doctrine provides an affirmative defense to a claim for the recovery of money that a plaintiff voluntarily paid. The duress/coercion exception to the voluntary payment doctrine requires the plaintiff show no reasonable alternative to payment existed. Additionally, the defense of property exception requires the plaintiff show an imminent risk of losing the property.


“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness Dec 2014

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products …


Should Neither Wind Nor Rain Nor Hurricane Keep Victims From Recovery? Examining The Tort And Insurance Systems’ Ability To Compensate Hurricane Victims, Kathleen A. Zink Dec 2014

Should Neither Wind Nor Rain Nor Hurricane Keep Victims From Recovery? Examining The Tort And Insurance Systems’ Ability To Compensate Hurricane Victims, Kathleen A. Zink

Fordham Law Review

Large-scale natural disasters, such as hurricanes, wreak tremendous havoc, causing billions of dollars in damages. Those who suffer serious damage may turn to their insurance providers or the tort system for compensation. But, both the tort and insurance systems present serious limitations to a hurricane victim’s recovery. This Note analyzes the goals and criticisms of these two systems to determine which compensates hurricane victims best. In light of its analysis, this Note ultimately concludes that neither system satisfactorily compensates victims. Yet, tort could play some role in hurricane-related damage. Tort law could effectively deter negligent behavior by imposing liability on …


Perfecting Pregnancy Via Preimplantation Genetic Screening: The Quest For An Elusive Standard Of Care, Jolene S. Fernandes Dec 2014

Perfecting Pregnancy Via Preimplantation Genetic Screening: The Quest For An Elusive Standard Of Care, Jolene S. Fernandes

UC Irvine Law Review

No abstract provided.


Torts, Phillip Comer Griffeth, Cash V. Morris Dec 2014

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2013 and May 31, 2014. During this survey period, the Georgia Supreme Court decided several cases of significance in the medical malpractice arena, and a seven-judge panel of the Georgia Court of Appeals was called upon to decide a slip-and-fall case. Some might argue that a few of these cases were victories for the plaintiff's bar. However, a close reading of the opinions reflects some well-reasoned and impressive legal arguments concerning the gross negligence and summary judgment standards applied by Georgia's appellate jurists. These opinions will be cited …


A Rare Case Of Conspiracy By Lawful Means, Pey Woan Lee Dec 2014

A Rare Case Of Conspiracy By Lawful Means, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Conspiracy by lawful means is a well-known anomaly in the law of torts. The anomaly lies in the fact that the tort imposes liability on two or more persons acting in concert to pursue a course of conduct that is otherwise lawful when committed by a sole actor. Of course, it is a critical element of the tort that the conspirators must have acted with the predominant intention to cause harm to the victim, but it is well settled that malicious intent is not, by itself, a sufficient basis for founding liability. It would thus seem that it is the …


Setting Parental Controls: Do Parents Have A Duty To Supervise Their Children’S Use Of The Internet?, Alberto Bernabe Nov 2014

Setting Parental Controls: Do Parents Have A Duty To Supervise Their Children’S Use Of The Internet?, Alberto Bernabe

Alberto Bernabe

This article addresses the question of whether courts have created the possibility for parents to be held liable in tort for injuries caused by their children's use of the internet


Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver Nov 2014

Acts Of God Or Toxic Torts? Applying Tort Principles To The Problem Of Climate Change, Eduardo M. Peñalver

Eduardo M. Peñalver

The problem of climate change continues to be an intractable one for policymakers. Uncertainties over the likely costs of climate change as well as over the costs of proposed remedies have hampered the formation of a consensus regarding the best course of action. The principles of tort law provide a useful means of analyzing the problem of climate change, particularly the issue of who should bear the costs associated with its effects. The two major goals of tort law (reducing the costs of accidents and corrective justice) both point towards the appropriateness of placing the costs of climate change on …


Las Relaciones Contractuales De Hecho Y El Contacto Social: ¿Instituciones Incomprendidas?, Renzo E. Saavedra Velazco Nov 2014

Las Relaciones Contractuales De Hecho Y El Contacto Social: ¿Instituciones Incomprendidas?, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

No abstract provided.


Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter Nov 2014

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.


Brief For Respondent. United States V. Wong, 134 S.Ct. 2873 (2014) (No. 13-1074), 2014 Wl 5804278, Eric Schnapper, Tom Steenson, Beth Creighton, Michael Rose Nov 2014

Brief For Respondent. United States V. Wong, 134 S.Ct. 2873 (2014) (No. 13-1074), 2014 Wl 5804278, Eric Schnapper, Tom Steenson, Beth Creighton, Michael Rose

Court Briefs

QUESTIONS PRESENTED

1. Is the six-month limit on filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), jurisdictional?

2. If the six-month limit for filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is not jurisdictional, is it subject to equitable tolling?


Reforming The Consumer Class Action, Elizabeth Chamblee Burch Nov 2014

Reforming The Consumer Class Action, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch was part of a panel on Reforming the Consumer Class Action. This was part of a conference entitled: The Future of Class Action Litigation: A View From the Consumer Class that took place at the New York University School of Law on November 7, 2014


Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya Nov 2014

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …


Who's The Bully Now? The Third Circuit Gives Negligent School Districts A Constitutional "Hall Pass" In Morrow V. Balaski, Leaving Bullied Students Out In The Cold, Nicholas Karwacki Nov 2014

Who's The Bully Now? The Third Circuit Gives Negligent School Districts A Constitutional "Hall Pass" In Morrow V. Balaski, Leaving Bullied Students Out In The Cold, Nicholas Karwacki

Villanova Law Review

No abstract provided.


A Place At The Table: What Food Litigation Tells Us About The Function Of Tort Law, Melissa Mortazavi Oct 2014

A Place At The Table: What Food Litigation Tells Us About The Function Of Tort Law, Melissa Mortazavi

Melissa Mortazavi

No abstract provided.


To Enforce A Privacy Right: The Sovereign Immunity Canon And The Privacy Act’S Civil Remedies Provision After Cooper, Daniel J. Dimatteo Oct 2014

To Enforce A Privacy Right: The Sovereign Immunity Canon And The Privacy Act’S Civil Remedies Provision After Cooper, Daniel J. Dimatteo

Florida Law Review

In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without his consent. Alleging that the unlawful disclosure of his condition caused him severe emotional distress, Cooper sought monetary relief under the Privacy Act’s civil remedies provision, which establishes a cause of action against the government for “actual damages.” The dispositive …


Small Claims, Big Recovery: Proposals For Settlement In Florida’S Small Claims Courts Post-Nichols, Laura M. Beard Oct 2014

Small Claims, Big Recovery: Proposals For Settlement In Florida’S Small Claims Courts Post-Nichols, Laura M. Beard

Florida Law Review

After a debilitating car accident left Shannon Nichols injured and saddled with nearly $10,000 in medical bills, she sought only one thing—a road to recovery. Instead, Nichols faced a harrowing reality—after turning down a proposal for settlement from her insurer and losing at trial, not only did Nichols fail to receive reimbursement for her medical expenses, but she also was forced to pay her insurer’s attorneys’ fees and costs, an amount totaling over $23,000.


Can A Professional Limit Liability Contractually Under Florida Law?, John Terwilleger Oct 2014

Can A Professional Limit Liability Contractually Under Florida Law?, John Terwilleger

Florida Law Review

Florida law is currently unclear on the issue of whether a professional may rely upon a limitation of liability clause in a professional services contract. Limitation of liability clauses are common in business contracts, especially in construction, a field that includes many professionals such as engineers and architects. While Florida has historically enforced limitation of liability clauses in professional services contracts, recent cases have cast doubt on whether the clauses are enforceable. If the Florida Supreme Court establishes that professionals cannot rely upon these clauses, it will be taking a position contrary to the majority of states, including New York, …