Law Commons^™

What History Can Tell Us About The Future Of Insurance And Litigation After Covid-19, Kenneth S. Abraham, Tom Baker

All Faculty Scholarship

This Article, written for the annual Clifford Symposium on Tort Law and Social Policy, chronicles a series of developments in American history that profoundly influenced the course of insurance and insurance law, in order to predict the post-COVID-19 future of these fields. In each instance, there was a direct and decided cause-and-effect relationship between these developments and subsequent change in the world of insurance and insurance law. As important as the influence of COVID-19 is at present and probably will be in the future, in our view the COVID-19 pandemic will not be as significant an influence on insurance and …

Righting A Reproductive Wrong: A Statutory Tort Solution To Misrepresentation By Reproductive Tissue Providers, Yaniv Heled, Hillel Y. Levin, Timothy D. Lytton, Liza Vertinsky

Scholarly Works

Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring …

The Ratio Method: Addressing Complex Tort Liability In The Fourth Industrial Revolution, Harrison C. Margolin, Grant H. Frazier

St. Mary's Law Journal

Emerging technologies of the Fourth Industrial Revolution show fundamental promise for improving productivity and quality of life, though their misuse may also cause significant social disruption. For example, while artificial intelligence will be used to accelerate society’s processes, it may also displace millions of workers and arm cybercriminals with increasingly powerful hacking capabilities. Similarly, human gene editing shows promise for curing numerous diseases, but also raises significant concerns about adverse health consequences related to the corruption of human and pathogenic genomes.

In most instances, only specialists understand the growing intricacies of these novel technologies. As the complexity and speed of …

Utilizing Tort Law To Deter Misconduct In The Public Sector, Boaz Segal

Seattle Journal for Social Justice

No abstract provided.

Tort Liability In A Pandemic Environment: Exploratory Thoughts, Kee Yang Low

Research Collection Yong Pung How School Of Law

In a matter of months, the emergence and spread of the coronavirus has massively disrupted and radically changed life, causing untold suffering and staggering losses. It will be some time before the pandemic ends and the world returns to normal or, more likely, move to a new normal. Since the beginning of 2020, health authorities and governments worldwide have devoted huge amounts of resources studying the science surrounding the coronavirus – its origin, spread, mutation, symptoms, treatment, containment and the like – and taking regulatory action to manage the crisis. The outbreak of the virus and the attendant governmental measures …

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

When Ais Outperform Doctors: Confronting The Challenges Of A Tort-Induced Over-Reliance On Machine Learning, A. Michael Froomkin, Ian Kerr, Joelle Pineau

Articles

Someday, perhaps soon, diagnostics generated by machine learning (ML) will have demonstrably better success rates than those generated by human doctors. What will the dominance of ML diagnostics mean for medical malpractice law, for the future of medical service provision, for the demand for certain kinds of doctors, and in the long run for the quality of medical diagnostics itself?

This Article argues that once ML diagnosticians, such as those based on neural networks, are shown to be superior, existing medical malpractice law will require superior ML-generated medical diagnostics as the standard of care in clinical settings. Further, unless implemented …

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 …

When You Should Have Known: Rethinking Constructive Knowledge In Tort Liability For Sexual Transmission Of Hiv, John A. Turcotte

Maine Law Review

AIDS is a modern epidemic that has grabbed the forefront of this nation's attention like no other disease in the twentieth century. Despite vigorous medical research and experimentation, the disease remains incurable and ultimately fatal. Protecting the health of the citizens has always been a strong policy of the law. Tort liability for the spread of contagious diseases dates back to the early nineteenth century. Tort liability for sexual transmission of AIDS began to appear in the late 1980s, not long after the appearance of the disease. Based as it was on the tort actions arising from other transmittable diseases, …

The Road To Autonomy, Michelle Sellwood

San Diego Law Review

[T]his Comment discusses the background of AI and robotics, the technology behind the autonomous vehicle, and the evolution of products liability laws. Part III examines current regulations, the benefits of autonomous technology, and the need for a definitive liability framework. Part IV discusses why current tort liability laws will be ineffective in governing autonomous vehicle liability by examining the shift in liability from the driver to the owner and manufacturer. Part V proposes a short-term solution by attributing liability to the programmer, while software is still hard-coded. Finally, Part VI explores legal personhood, and proposes that the autonomous vehicle be …

Managed Care, Utilization Review, And Financial Risk Shifting: Compensating Patients For Health Care Cost Containment Injuries, Vernellia R. Randall

Vernellia R. Randall

This Article examines current tort remedies for personal injury claims and explores the problems that arise when these remedies are applied to physicians' actions that are directed by third-party payers. Part II of this Article explores the organization and historical development of managed health care products. Part III considers the past and present uses of the utilization review process and financial risk shifting. Part IV explores the applicability of traditional theories of tort liability to third-party payers, including direct liability of third-party payers who market managed care products. Part V considers the barriers that ERISA presents to compensating patients for …

Developing Exposure-Based Preconception Tort Liability: A Scientific Challenge To Traditional Tort Concepts, Nicholas P. Putz

Catholic University Law Review

With all of the recent advances in science and technology, humans are being exposed to many new and complex substances for the first time. Such exposure has led to an array of medical complications, ranging from cancer to physical deformity. However, simultaneous advances in other areas of science and technology are, for the first time, beginning to provide humans with the tools to pinpoint the causes of disease. Unfortunately, a sufficient causal diagnosis in the medical field does not directly translate to an actionable harm in the U.S. legal system. In particular, injuries that may have resulted from prior generational …

Can Negligent Referral To Another Attorney Constitute Legal Malpractice?, Barry R. Temkin

Touro Law Review

No abstract provided.

The Tort Liability Of The Classroom Teacher, Stephen R. Ripps

Akron Law Review

THIS ARTICLE WILL DISCUSS the tort liabilities to which classroom teachers are exposed and predict future parameters of concern. The rules of law applicable to the tortious conduct of the classroom teachers equally affect elementary, secondary, and higher education instructors

Liability Of Liquor Vendors For Injuries To Intoxicated Persons, Kemock V. Mark Ii, Elinore Marsh

Akron Law Review

In an opinion anticipating, in part, the advent of the comparative negligence standard in Ohio, Kemock v. Mark II extends common law liability to include liquor vendors who serve already intoxicated patrons who injure themselves and whose injury is the proximate result of continued alcohol consumption. Relying upon an earlier Ohio Supreme Court decision and a California Supreme Court case, the Court of Appeals of Ohio recognizes liability for vendor negligence which damages the drinker. The test for recovery is one not previously applied in cases of this sort in Ohio; one which measures liability by balancing degrees of each …

What Makes The Collateral Source Rule Different?, Michael B. Kelly

Akron Law Review

Tort liability forces parties engaged in risk-producing activities to internalize the costs that the activities impose on those adversely affected by the risks they create. Rational parties should take precautions to reduce those risks rather than pay the costs the risks cause – at least up to the point that further reductions would cost more than the harms they would prevent. How could reforms that reduce liability, and thus force parties to internalize a lower portion of the costs suffered as a result of the risks they create, produce a decrease in fatal accidents? Part I below briefly considers this …

Using It For All It's Wuerth: A Critical Analysis Of National Union Fire Insurance Company Of Pittsburgh V. Wuerth As Applied To Medical Malpractice In Ohio, Christy L. Wesig

Akron Law Review

This essay discusses the application of this new limitation to the field of medical malpractice, the divergent results reached by Ohio’s appellate courts in the medical negligence and malpractice context since Wuerth, and the various treatments by other jurisdictions. This essay argues that the holding in Wuerth narrowly applies only to law firms, and that applying it to medical malpractice results in a reversal of the settled Ohio law and injustice for those injured by the negligence of medical professionals. Part II examines the history of hospital liability and traces the changes in vicarious liability up to the Wuerth decision. …

A Sea Change In Creditor Priorities, Kristen Van De Biezenbos

University of Michigan Journal of Law Reform

This Article argues that the operation of maritime law undermines a primary justification for creditor priorities under U.S. law. Under current law, when a debtor becomes insolvent, its secured creditors will be paid the full amount of their debt to the extent of their security interest, even if that leaves nothing to pay unsecured creditors. This is controversial with respect to involuntary unsecured creditors, particularly those with tort claims against the debtor. Defenders of this scheme of priorities have argued that allowing greater priority to involuntary creditors would hinder the availability or increase the cost of credit. However, involuntary creditors …

Whose Best Interest Is It Anyway?: School Administrators' Liability For Student Injury In Virginia, Alison Landry

Catholic University Law Review

In 2012 the Supreme Court of Virginia declined to recognize a special relationship between a school’s vice principal and the school’s students. Without the third person liability that accompanies special relationships, a vice principal is allowed to put student safety at the bottom of his to-do list. This Note analyzes why the Supreme Court of Virginia’s decision in Burns v. Gagnon should have found that a special relationship existed between a vice principal and his students. Declining to recognize this special relationship has left school administrators with little risk of liability for a student’s harm. This Note discusses the few …

“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 …

National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani

San Diego Law Review

This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so …

On Business Torts And The First Amendment, Richard J. Peltz-Steele

Faculty Publications

A gaping question in free speech law surrounds the application of the First Amendment defense in business torts. The pervasiveness of communication technologies, the flourishing of privacy law, and the mere passage of time have precipitated an escalation in tort cases in which communication, and what the defendant may allege is free speech, lies at the heart of the matter.

Finding Fault?: Exploring Legal Duties To Return Incidental Findings In Genomic Research, Elizabeth R. Pike, Karen H. Rothenberg, Benjamin E. Berkman

Faculty Scholarship

The use of whole genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs), findings with individual health or reproductive significance that are beyond the aims of the particular research, and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances, but have provided vague or context-dependent approaches to determining which IFs must …

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Assessing The Insurance Role Of Tort Liability After Calabresi, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Workers' Compensation: Alternatives Are Limited, Irvin Stander

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Police Shootings - Administrative Law As A Method Of Control Over Police: Peterson V. City Of Long Beach, James Wright

Pepperdine Law Review

Professor Kenneth Davis has long advocated that police manuals should be viewed as interpretative administrative rules, which would guide police in their daily activities. He argued that police departments should not fear adopting interpretative rules because such rules would not be binding; therefore, the department would not be subject to tort liability if an officer violated such a rule. In Peterson v. City of Long Beach, a police officer violated the police manual when he shot and killed a non-violent fleeing suspect. The California Supreme Court, in an opinion by Justice Frank Newman, cited Professor Davis and his call for …

It's All Fun And Games Until Someone Loses An Eye: An Analysis Of University Liability For Actions Of Student Organizations, Jennifer L. Spaziano

Pepperdine Law Review

No abstract provided.

Does Product Liability Make Us Safer?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Product liability law is intended to create an environment that fosters safer products. However, this law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. This paper examines both types of problems and summarizes relevant academic literature.

"Fasten Your Seat Belt, Orville!": Exploring The Relationship Between State-Of-The-Art, Technological And Commercial Feasibility, And The Restatement'S Reasonable Alternative Design Requirement, Richard C. Ausness

Law Faculty Scholarly Articles

This Article begins by examining some of the case law involving the state-of-the-art concept and finds that it is principally concerned with technological feasibility. It also concludes that most cases do not treat state-of-the-art as conclusive on the design defect issue; rather, they merely consider it one of several factors that the fact finder may take into account when deciding whether a product's design is defective or not. Part II is concerned with technological development. This part examines two basic patterns of technological development and provides a number of historical examples for each. The first is a linear pattern, exemplified …