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Articles 1 - 30 of 71
Full-Text Articles in Law
Dextraze V. Bernard, 253 A.3d 411 (R.I. 2021), Angela Amaral
Dextraze V. Bernard, 253 A.3d 411 (R.I. 2021), Angela Amaral
Roger Williams University Law Review
No abstract provided.
The "Accident Network": A Network Theory Analysis Of Proximate Causation, Anat Lior
The "Accident Network": A Network Theory Analysis Of Proximate Causation, Anat Lior
Marquette Law Review
In torts, proximate causation, or legal cause, examines whether harmful negligent conduct is “closely enough related” to the damages that ensue. Torts professors often use the metaphor of a stone being thrown into a pond to explain this rather amorphous legal doctrine. The ripples the stone creates surrounding it are the direct result of the act of it being thrown. The stone tossed into the pond, i.e., a negligent act, created an effect which perpetuated via ripples to a long distance, forever changing the entire pond, i.e., causing close and far damages. Can all of those affected by the negligent …
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon
Scholarship Chronologically
This Paper was presented at the conference, "A Celebration of the Work of Wendy Gordon," at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal's Theory of Fair Use into on Economic View of Copyright Law: From "proximate Cause" to "Transormative Use," the paper was also presented at the March, 2016, "Conference on IP and Private Law," held at Harvard Law School. I am grateful to …
Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars
Why Exempting Negligent Doctors May Reduce Suicide: An Empirical Analysis, John Shahar Dillbary, Griffin Edwards, Fredrick E. Vars
Indiana Law Journal
This Article is the first to empirically analyze the impact of tort liability on suicide. Counter-intuitively, our analysis shows that suicide rates increase when potential tort liability is expanded to include psychiatrists—the very defendants who would seem best able to prevent suicide. Using a fifty-state panel regression for 1981 to 2013, we find that states which allowed psychiatrists (but not other doctors) to be liable for malpractice resulting in suicide experienced a 9.3% increase in suicides. On the other hand, and more intuitively, holding non-psychiatrist doctors liable de-creases suicide by 10.7%. These countervailing effects can be explained by psychiatrists facing …
Palsgraf V. Long Island R.R.: Its Historical Context, William E. Nelson
Palsgraf V. Long Island R.R.: Its Historical Context, William E. Nelson
Touro Law Review
No abstract provided.
Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White
Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White
Touro Law Review
No abstract provided.
Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan
Arkansas, Meet Tarasoff: The Question Of Expanded Liability To Third Persons For Mental Health Professionals, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
Positive Externalities And The Economics Of Proximate Cause, Israel Gilead, Michael D. Green
Positive Externalities And The Economics Of Proximate Cause, Israel Gilead, Michael D. Green
Washington and Lee Law Review
No abstract provided.
Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss
Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss
Catholic University Law Review
In 1919, Ms. Julia May Garret, a young Virginian woman, was brutally raped by two different men as she was walking home after the Washington Southern Railway failed to stop at her designated station. What followed was a legal battle that created precedent still discussed in American casebooks today. Although most case law recognizes that the criminal acts of third parties severs liability because such conduct is considered unforeseeable, Hines v. Garrett held that the harm Ms. Garrett suffered was within the risk created by the railroad’s negligence, and as a common carrier, the railroad owed her a duty to …
Causing Copyright, Shyamkrishna Balganesh
Causing Copyright, Shyamkrishna Balganesh
All Faculty Scholarship
Copyright protection attaches to an original work of expression the moment it is created and fixed in a tangible medium. Yet, modern copyright law contains no viable mechanism by which to examine whether someone is causally responsible for the creation and fixation of the work. Whenever the issue of causation arises, copyright law relies on its preexisting doctrinal devices to resolve the issue, in the process cloaking its intuitions about causation in altogether extraneous considerations. This Article argues that copyright law embodies an unstated, yet distinct theory of authorial causation, which connects the element of human agency to a work …
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Faculty Scholarship
We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Information And Causation In Tort Law: Generalizing The Learned Hand Test For Causation Cases, Keith N. Hylton
Faculty Scholarship
This paper discusses the economics of causation in tort law, describing precise implications for precautionary incentives when courts are and are not perfectly informed. With precautionary incentives identified, we can ask whether the causation inquiry enhances welfare, and if so under what conditions. Perhaps the most important innovation applies to the Hand Formula. When causation is an issue, the probability of causal intervention should be part of the Hand test, and the generalized Hand test offers a method of distinguishing significant classes of causation cases. I close with implications for the moral significance of causation and for economic analysis of …
Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin
Negligence, Causation, And Incentives For Care, Keith N. Hylton, Haizhen Lin
Faculty Scholarship
We present a new model of negligence and causation and examine the influence of the negligence test, in the presence of intervening causation, on the level of care. In this model, the injurer's decision to take care reduces the likelihood of an accident only in the event that some nondeterministic intervention occurs. The effects of the negligence test depend on the information available to the court, and the manner in which the test is implemented. The key effect of the negligence test, in the presence of intervening causation, is to induce actors to take into account the distribution of the …
Economic And Causation Issues In City Suits Against Gun Manufacturers , Frank J. Vandall
Economic And Causation Issues In City Suits Against Gun Manufacturers , Frank J. Vandall
Pepperdine Law Review
No abstract provided.
New Private Law Theory And Tort Law: A Comment, Keith N. Hylton
New Private Law Theory And Tort Law: A Comment, Keith N. Hylton
Faculty Scholarship
This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
The Persistence Of Proximate Cause: How Legal Doctrine Thrives On Skepticism, Jessie Allen
Articles
This Article starts with a puzzle: Why is the doctrinal approach to “proximate cause” so resilient despite longstanding criticism? Proximate cause is a particularly extreme example of doctrine that limps along despite near universal consensus that it cannot actually determine legal outcomes. Why doesn’t that widely recognized indeterminacy disable proximate cause as a decision-making device? To address this puzzle, I pick up a cue from the legal realists, a group of skeptical lawyers, law professors, and judges, who, in the 1920s and 1930s, compared legal doctrine to ritual magic. I take that comparison seriously, perhaps more seriously, and definitely in …
Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky
Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky
Peter Zablotsky
No abstract provided.
Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Peter Zablotsky
No abstract provided.
Minnesota Negligence Law And The Restatement (Third) Of Torts: Liability For Physical And Emotional Harms, Michael K. Steenson
Minnesota Negligence Law And The Restatement (Third) Of Torts: Liability For Physical And Emotional Harms, Michael K. Steenson
Faculty Scholarship
The purpose of this article is to provide a foundation for judges and lawyers, primarily in Minnesota, who are seeking to understand how the Third Restatement’s approach to negligence law fits with Minnesota negligence law. The first Part of the article examines the approach of the Third Restatement. Because decisions in other states applying the Third Restatement will be important for courts in Minnesota and elsewhere in deciding whether to apply the Third Restatement, the second Part examines early reports on the Third Restatement in Iowa, Nebraska, Arizona, Wisconsin, Tennessee, and Delaware.
Proximate Cause In Civil Damages, Michael E. Steenson
Proximate Cause In Civil Damages, Michael E. Steenson
Journal of Law and Practice
No abstract provided.
Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Cleveland State Law Review
Most recently, however, the courts—the entities mandated to apply proximate cause during the course of the analysis of liability for negligence—appear to have brokered a peace between the dueling conceptualizations of proximate cause. As applied, the proximate cause analysis grounded in substantial factor appears to be yielding the same results with respect to liability as the proximate cause analysis grounded in foreseeability. It is the thesis of this Article that such a peace has, in fact, been brokered; whether approached from the means of substantial factor or result-within-the-risk, the end is the finding of common ground for the purpose of …
Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman
Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman
Michigan Law Review
This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …
Against Genetic Exceptionalism: An Argument In Favor Of The Viability Of Preconception Genetic Torts, Daniel S. Goldberg
Against Genetic Exceptionalism: An Argument In Favor Of The Viability Of Preconception Genetic Torts, Daniel S. Goldberg
Journal of Health Care Law and Policy
No abstract provided.
Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Mixing Oil And Water: Reconciling The Substantial Factor And Results-With-In-The-Risk Approaches To Proximate Cause, Peter Zablotsky
Scholarly Works
No abstract provided.
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Duty In Tort Law: An Economic Approach, Keith N. Hylton
Faculty Scholarship
Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …
Tell Me What You Eat, And I Will Tell Whom To Sue: Big Trouble Ahead For “Big Food"?, Richard C. Ausness
Tell Me What You Eat, And I Will Tell Whom To Sue: Big Trouble Ahead For “Big Food"?, Richard C. Ausness
Law Faculty Scholarly Articles
Overweight consumers are seeking damages from purveyors of fast food for obesity-related health problems. Plaintiffs claim that products that are high in fat, sugar, salt and cholesterol are defective. Other potential liability theories include product category liability, failure to warn, failure to disclose nutritional information, deceptive advertising, and negligent marketing. However, in order to prevail at trial, plaintiffs must overcome problems with causation, duty and proximate cause, shifting responsibility, federal preemption, comparative fault, and assumption of risk. If such litigation is successful, it may induce fast-food companies to produce healthier products. Nevertheless, this Article concludes that the problem of obesity, …
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Law Faculty Scholarly Articles
One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …
Proximate Cause And The American Law Institute: The False Choice Between The "Direct-Consequences" Test And The "Risk Standard", Michael L. Wells
Proximate Cause And The American Law Institute: The False Choice Between The "Direct-Consequences" Test And The "Risk Standard", Michael L. Wells
University of Richmond Law Review
No abstract provided.
Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter Nash Swisher
Insurance Causation Issues: The Legacy Of Bird V. St. Paul Fire & Marine Ins. Co., Peter Nash Swisher
Nevada Law Journal
No abstract provided.
The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness
The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness
Law Faculty Scholarly Articles
There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …