Law Commons^™

Medical Malpractice Compensation Reform, Ruby Dean

Political Science Undergraduate Honors Theses

Tort reform legislation is a topic that has been discussed and studied heavily in the states of Texas and California. This is because it has been claimed that these states have had success in bringing more doctors into the states. This thesis studies those states, as well as the state of Arkansas. It examines Arkansas because tort reform legislation was an issue brought up in the most recent election in November 2018 in that state. Although Arkansas’ tort reform ballot measure was removed from the ballot by the Supreme Court of Arkansas, a similar measure could still be brought forth …

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

West Virginia Law Review

No abstract provided.

Palsgraf-Ian Proximate Cause And Insurance Law: The State Of New York Additional Insured Coverage Following Burlington Insurance Co. V. Nyc Transit Authority, Ryan P. Maxwell

Buffalo Law Review

No abstract provided.

Finding A Better Way Around Employment At Will: Protecting Employees’ Autonomy Interests Through Tort Law, William R. Corbett

Buffalo Law Review

No abstract provided.

Applying Tort Law To Fabricated Digital Content, Michael Scott Henderson

Utah Law Review

Advances in computer technologies have led to the development of new tools to edit and disseminate digital media. Some of these new tools allow users to fabricate digital media by editing video and audio recordings of individuals to make it appear as if they are saying or doing things they have not actually said or done. The rise of these new technologies will lead to litigation by individuals who are harmed by the misuse of fabricated digital media. These individuals will be able to rely on several common law torts—such as defamation, misappropriation, false light, and intentional infliction of emotional …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

A New Look At Contract Mistake Doctrine And Personal Injury Releases, Grace M. Giesel

Nevada Law Journal

‘[C]ourts cannot make for the parties better agreements than they themselves have been satisfied to make.’

Finding A Better Way Around Employment At Will: Protecting Employees' Autonomy Interests Through Tort Law, William Corbett

Journal Articles

No abstract provided.

"Decisional" And "Operational" Negligence, Vincent Ooi

Research Collection Yong Pung How School Of Law

This article draws a distinction between “decisional” negligence, which concerns the negligence exhibited by a professional advising his client in a decision to pursue a course of action, and “operational” negligence which concerns the manner in which a professional acts upon his client’s instructions to pursue a course of action. With the advent of Montgomery, the distinction between the two kinds of negligence has been thrown into focus in the context of medical negligence. The distinction is an important one for two reasons: 1) the “standard of care” test to be applied; and 2) the measure of damages.

Haack On Legal Proof, Richard Wright

All Faculty Scholarship

In this paper I discuss Susan Haack’s illuminating discussion and constructive critique of the current confusion regarding the standards of proof employed in the law, focusing especially on mathematical probability rather than warranted belief interpretations of those standards. At the end, I question Haack’s claim that statistical evidence is relevant not only for establishing the existence of a causal process but also, although usually insufficient by itself, for proving actual causation in a specific case.

Evaluating New York's Notice Of Claim Requirements: Why Naming Individual Municipal Employees Is Not Essential, Daniel Randazzo

St. John's Law Review

(Excerpt)

This Note argues that the approach adopted by the Fourth Department in Goodwin—that General Municipal Law § 50-e does not require the naming of individual municipal employees— is the correct approach in terms of the text of the statute and the purpose behind the statute, as well as policy and practical implications. This Note is comprised of four parts. Part I illustrates the importance of the notice of claim requirement and introduces the text of New York General Municipal Law § 50- e(2). Part II provides a synopsis of the case law on both sides of this issue, …

You Are Not Cordially Invited: How Universities Maintain First Amendment Rights And Safety In The Midst Of Controversial On-Campus Speakers, Alyson R. Hamby

Cornell Law Review

Against a backdrop of national political turmoil, universities have experienced volatile reactions from their student bodies and outsiders in protest of the inflammatory speakers that schools host on their campuses. This Note discusses the tension between First Amendment protections and tort liability in the context of higher education. Specifically, it focuses on the interplay between controversial, on-campus speakers and the violent protests that arise in reaction to them. While examining this interaction, this Note emphasizes the legal duties of academic institutions in facilitating these on-campus speakers while also protecting their students’ constitutional rights and safety. In examining these conflicts, the …

Re-Playing Maimonides’ Codes: Designing Games To Teach Religious Legal Systems, Owen Gottlieb

Articles

Lost & Found is a game series, created at the Initiative for

Religion, Culture, and Policy at the Rochester Institute of

Technology MAGIC Center.1 The series teaches medieval

religious legal systems. This article uses the first two games

of the series as a case study to explore a particular set of

processes to conceive, design, and develop games for learning.

It includes the background leading to the author's work

in games and teaching religion, and the specific context for

the Lost & Found series. It discusses the rationale behind

working to teach religious legal systems more broadly, then

discuss the …

The Faulty Law And Economics Of The “Baseball Rule”, Nathaniel Grow, Zachary Flagel

William & Mary Law Review

This Article examines the so-called “Baseball Rule,” the legal doctrine generally immunizing professional baseball teams from liability when spectators are hit by errant balls or bats leaving the field of play. Following a recent series of high-profile fan injuries at Major League Baseball (MLB) games, this century-old legal doctrine has come under increased scrutiny, with both academic and media commentators calling for its abolition. Nevertheless, despite these criticisms, courts have almost uniformly continued to apply the Baseball Rule to spectator-injury lawsuits.

This Article offers two contributions to the ongoing debate surrounding the Baseball Rule. First, it provides new empirical evidence …

Dolorfino V. Univ. Med. Ctr. Of S. Nev., 134 Nev. Adv. Op. 79 (Oct. 4, 2018), Steven Brecher

Nevada Supreme Court Summaries

The Court held that a claim of injury suffered during medical treatment may not be dismissed for lack of a supporting affidavit from a medical expert if the injured body part is not “directly involved in” or “proximate” to the treatment, where those phrases are to be interpreted quite narrowly.

The Demise Of Drug Design Litigation Death By Federal Preemption, Aaron Twerski

Faculty Scholarship

No abstract provided.

Widening The Lens: Refocusing The Litigation Cost-And-Delay Narrative, Arthur R. Miller

Cardozo Law Review

No abstract provided.

The Cost Of Rules, The Rules Of Costs, Victor Marrero

Cardozo Law Review

No abstract provided.

What Does Law Have To Do With It? The Jury's Role In Cases Alleging Violations Of Law, Custom And Standards, Barbara Kritchevsky

Arkansas Law Review

Rules telling people how to act come from many sources. Statutory law governs a wide range of conduct—driving an auto-mobile, operating a business, building a home. Non-governmental standards reach just as far. Individuals run their businesses in accordance with the law, but also by observing professional standards and industry customs. A hotel owner might look to state or local law to determine how to fence the hotel pool or whether to have a lifeguard on duty. The owner might also decide what to do by looking to industry customs or non-govern-mental safety guidelines, such as those a private body has …

The Future Of Tort Litigation For Undocumented Immigrants In Donald Trump’S “Great” America, Dina Lexine Sarver

University of Miami Race & Social Justice Law Review

No abstract provided.

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

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 — now in its Second Edition — which is designed to help judges and …

A Mountain State Transformation: West Virginia's Move Into The Mainstream, Cary Silverman, Richard R. Heath Jr.

West Virginia Law Review

No abstract provided.

Addicted To Hope: Abating The Opioid Epidemic And Seeking Redress From Opioid Distributors For Creating A Public Nuisance, Nathan R. Hamons

West Virginia Law Review

No abstract provided.

One Rule To Compensate Them All, Noam Sher

West Virginia Law Review

The article claims that there is a unique compensation criterion that should be applied in all civil wrongs, inter alia, in tort, intellectual property and property law. Where an individual wrongfully infringes the right of another, the taker should be obliged to repay the victim her damages plus half the additional attributed net profits derived from the taking. This article names this criterion the Golden Rule. The suggested criterion contains three main components. First, for example, a firm increased manufacturing with profits of $1,000, acted wrongfully, and, as a result, someone suffered damages of $600-the taker should pay the victim …

Qualified Immunity And Fault, John F. Preis

Notre Dame Law Review

This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of …

Foreword: The Future Of Qualified Immunity, Samuel L. Bray

Notre Dame Law Review

Qualified immunity is not an unqualified success. This defense, which protects officers from liability for damages unless they violate clearly established law, has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion …

Formalism, Ferguson, And The Future Of Qualified Immunity, Fred O. Smith Jr.

Notre Dame Law Review

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. Another proposal would render governmental employers’ liable for the acts of their agents.

Qualified Immunity At Trial, Alexander A. Reinert

Notre Dame Law Review

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

Guidelines And Best Practices For Implementing 2018 Amendments To Rule 23 Class Action Settlement Provisions, Bolch Judicial Institute

Bolch Judicial Institute Publications

In 2016, the Bolch Judicial Institute (then the Center for Judicial Studies) hosted a conference to develop Guidelines and Best Practices in light of new amendments to Rule 23 on Class Actions, which were scheduled to take effect on December 1, 2018.

The conference laid the groundwork for the Class Action Settlement Guidelines and Best Practices, which were drafted by 38 prominent defense and plaintiff practitioners and experts well experienced in class action litigation — with significant input and comment from six federal and state court judges.

This document is intended to help the bench and bar comply with the …

The Branch Best Qualified To Abolish Immunity, Scott Michelman

Notre Dame Law Review

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in …