Law Commons^™

Climate Change And Dam Owner Liability In Rhode Island, Read Porter, James Philopena Jr., Cory Lee

Sea Grant Law Fellow Publications

Increasing precipitation associated with climate change is affecting dam operation and hazards in Rhode Island. Flooding caused by increased precipitation or extreme weather events can cause dam failure or upstream or downstream flooding, resulting in loss of life and property. These losses can result in liability, which may vary based on the dam owner and its purpose. This study assists dam owners and the public in understanding the potential liabilities that may arise as a result of flooding from extreme weather events. Section one provides a background of dam hazards in Rhode Island in the context of climate change. Section …

Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino

Faculty Articles and Other Publications

This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Modification Of Washington's Nondelegable Duty Doctrine In A Post-Afoa Ii State, Caroline Aubry Golshan

Seattle University Law Review

Under the nondelegable duty doctrine, a person or entity who has a duty to provide specified safeguards or precautions for the safety of others and who maintains a right of control over workplace safety is subject to liability for harm caused by the failure of a sub-contractor to provide such safeguards or precautions. This doctrine is based on the policy that the party with the greatest power over work conditions is in the best position to implement safety measures across a complex and layered worksite. This doctrine has existed in Washington State for decades until the recent Washington Supreme Court …

Suing Guns Out Of Existence?, Scott R. Thomas, Mystica M. Alexander

Washington and Lee Law Review Online

In an effort to address gun violence, activists and victims’ families have filed lawsuits against the firearms industry seeking damage awards for violence committed by third party unrelated actors. Although Congress passed the Protection of Lawful Commerce in Arms Act (PLCAA) in 2005 intending to foreclose such lawsuits, since the time of the law’s passage, plaintiffs have brought claims against the firearms industry seeking refuge in an exception embedded in the statute. In a March, 2019 decision, Soto v. Bushmaster Firearms International, LLC, the Connecticut Supreme Court found that the Connecticut Unfair Trade Practices Act fell within an exception …

First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus

Nevada Supreme Court Summaries

The Court clarified that (1) the heightened duty of care by common carriers only applies to transportation-related risks, and (2) when a common carrier is aware of a passenger’s disability, reasonable care includes providing safe transport that the circumstances reasonably require based on the disability.

Perverting Incentives When The Priceless Is Not Compensable: Victims’ Subjective Value In Negligence, Yehonatan Shiman

West Virginia Law Review

No abstract provided.

Exposed: The Pitfalls In Nevada’S Nonconsensual Pornography Statute And A Proposal For More Protection, Camilla Dudley

Nevada Law Journal

No abstract provided.

Attorney-Client Privilege: Expanding The Crime-Fraud Exception To Intentional Torts, Stacy Kochanowski

Buffalo Law Review

No abstract provided.

Perpetuating Injustice: Analyzing The Maryland Court Of Appeals’S Refusal To Change The Common Law Doctrine Of Contributory Negligence, Andrew White

Maryland Law Review

No abstract provided.

Introductory Remarks From The Festschrift Organizer, Richard Weisberg

Cardozo Law Review

On October 11, 2018, a group of scholars from around the world gathered at Cardozo to celebrate the writings of Professor Arthur Jacobson. A fair sampling of their remarks in his honor follows in this special number of the Cardozo Law Review. Thanks for the event itself and the proceedings of the 11 th of October are due Dean Melanie Leslie, Josephine Tirado, Michael Pantazakos, my research assistants Catherine Weiss and Scott Christopher, and the editors of the Law Review.

An Appreciation, Monroe Price

Cardozo Law Review

When I came to Cardozo in 1982, now many years ago and shortly after its founding, the question was who, as a leading voice of a vigorous and contentious faculty, could be the wise and understanding guide for a relatively young and somewhat impetuous dean, someone who would be willing to sacrifice his or her own scholarship for a bit to help navigate a significant transition and work to add to Cardozo's incipient distinctions. I fortunately turned to Arthur to be Associate Dean and ambassador to the faculty, an ambassador to many places. He could deploy his experience and instinct …

Mind Your Businesses: Why Georgia Companies Should Worry About European Privacy Law, Emily E. Seaton

Georgia Journal of International & Comparative Law

No abstract provided.

Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod

Faculty Scholarship

No abstract provided.

A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz

Indiana Law Journal

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns—a …

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Indiana Law Journal

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford

Maryland Law Review

No abstract provided.

The United Nations Compensation Commission: Mass Reparations Apotheosis, Gregory Townsend

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman

Articles

For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation …

Persecution Restitution: Removing The Jurisdictional Roadblocks To Torture Victim Protection Act Claims, Michael J. Stephan

Brooklyn Law Review

The Center for Victims of Torture estimates that as many as 1.3 million torture victims are living in the United States, but few of them have ever sought recourse against their offenders. Instead, most victims of torture flee the region where they are at risk of being further victimized and seek refuge in the United States. Fortunately, the United States provides a judicial method of recovery for those who have suffered, even when that suffering took place abroad at the hands of a foreign individual. The Torture Victim Protection Act of 1991, or TVPA, allows torture victims to pursue damages …

Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore

Washington and Lee Law Review

The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents …

Liability Not Waived For Lackawanna College: Athletic Programs May Not Disregard Minimal Standards Of Care And Safety, Rachael Marvin

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Tort Law’S Devaluation Of Stillbirth, Jill Wieber Lens

Nevada Law Journal

In the United States, more than sixty-five babies die daily due to stillbirth— the death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one-fourth of those deaths are preventable with proper medical care. Stated differently, one-fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.

This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive …

The Courtroom Turned Classroom: A Model Procedure For Educating The Gatekeepers Of Expert Evidence In Complex Toxic Tort Cases, Izabelle Tully

Cardozo Law Review

This Note maintains that in order for Rule 702 and the Daubert standard to have their intended effect, judges need more guidance and structure in how they approach scientific admissibility decisions. An analysis of how courts following Daubert currently address novel science, specifically in toxic tort cases where some members of the scientific community label causation evidence as junk science, supports this argument. This Note will focus on procedures courts have used to make gatekeeping decisions. From a study of these procedures, this Note will suggest a model framework that courts should employ to tackle novel science issues in mass …

Civil Rico: An Effective Deterrent To Fraudulent Asbestos Litigation?, Lester Brickman

Cardozo Law Review

In January 2014, U.S. Bankruptcy Judge George Hodges, presiding over the asbestos-related bankruptcy of Garlock Sealing Technologies, LLC, a manufacturer of gaskets containing asbestos, issued an order estimating Garlock's liability for pending and future mesothelioma cases. Judge Hodges, after hearing evidence discovered by Garlock in a sampling of settled cases, rejected using the usual bankruptcy court recourse to the debtor's historic settlement values as a valid basis for estimating Garlock's total future liability for asbestos-related injuries. He found that Garlock's prior mesothelioma settlements were not a reliable predictor of Garlock's liability because those settlements had been infected by misrepresentations by …

Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

There were over 40 torts cases in 2019, of which just over half involved the tort of negligence. Unlike previous years, this year's review will deal only with the ten most significant judgments. A full list of torts cases is included at the end of this chapter for the convenience of readers. Of the ten cases, not surprisingly, five of them are claims in negligence. Of these, three involve medical negligence and two involve negligent misrepresentation causing economic loss. The remaining cases relate to claims under the tort of conspiracy, defamation, fraud (or deceit), malicious falsehood as well as nuisance …

If A Tree Falls In A Roadway, Is Anyone Liable?: Proposing The Duty Of Reasonable Care For Virginia’S Road-Maintaining Entities, Ian J. Mcelhaney

Washington and Lee Law Review

This Note considers whether a duty for road-maintaining entities is tenable under Virginia law. It also explores the rationale for imposing differing liabilities between landowners and road-maintaining entities. Part III reviews the various duties other states use with respect to dangerous roadside trees and concludes that the duty of reasonable care is most appropriate for Virginia. Sovereign immunity is a companion issue and is addressed in Part IV. The Part provides a brief overview of the policy arguments for sovereign immunity, before reviewing immunity’s impact at the state, county, and municipal levels. The Part also addresses a government employee’s entitlement …

In Search Of A Unified Theory Of The Duties Flowing From Property Ownership In Virginia: A Response To Mcelhaney’S If A Tree Falls, E. Kyle Mcnew

Washington and Lee Law Review

In his Note, Ian McElhaney concludes that the Court got it right in Cline v. Dunlora South, LLC—that the landowner owes no duty to protect travelers on adjoining roadways from natural conditions on the landowner’s property—because the Court also got it right in Cline v. Commonwealth when it held that the Commonwealth of Virginia may have that duty instead. In the narrowest view, that is certainly a defensible position. If the case is just about natural conditions and roads, then there is intuitive appeal in saying that they are the Commonwealth’s roads; so, it is the Commonwealth’s job to make …

A Few Thoughts On “If A Tree Falls In A Roadway . . . .”, David Eggert

Washington and Lee Law Review

This Response to Ian McElhaney’s note examines (1) the background legal context that got us to where we are on falling-tree liability; (2) how this peculiar issue fits into Virginia’s general approach to the law; and (3) presents some thoughts on Mr. McElhaney’s reasoning and ultimate conclusions in urging liability for road maintainers.

Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield

Student Scholarship

Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide …