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The Lost & Found Game Series: Teaching Medieval Religious Law In Context, Owen Gottlieb, Ian Schreiber

Presentations and other scholarship

Lost & Found is a strategy card-to-mobile game series that teaches medieval religious legal systems with attention to period accuracy and cultural and historical context. The Lost & Found project seeks to expand the discourse around religious legal systems, to enrich public conversations in a variety of communities, and to promote greater understanding of the religious traditions that build the fabric of the United States. Comparative religious literacy can build bridges between and within communities and prepare learners to be responsible citizens in our pluralist democracy. The first game in the series is a strategy game called Lost & Found …

Criminal Employment Law, Benjamain Levin

Cardozo Law Review

This Article diagnoses a phenomenon, "criminal employment law," which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

A Qualified Defense Of Qualified Immunity, Aaron L. Nielson, Christopher J. Walker

Notre Dame Law Review

In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy.

These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a …

Qualified Immunity: Time To Change The Message, Karen M. Blum

Notre Dame Law Review

This Essay will proceed in four parts. Parts I, II, and III will highlight, through some recent illustrative cases, areas where the qualified immunity defense has been especially ineffective and inefficient by: (Part I) hampering the development of constitutional law and impeding the redress of constitutional wrongs; (Part II) draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect; and (Part III) breeding confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. …

The Intractability Of Qualified Immunity, Alan K. Chen

Notre Dame Law Review

This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute. The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and …

The Horror Chamber: Unqualified Impunity In Prison, David M. Shapiro, Charles Hogle

Notre Dame Law Review

The federal courts have been open to prisoners’ constitutional claims for half a century, but to this day, the availability of federal litigation has not stopped prisoners from being tortured, maimed, killed, or otherwise made to suffer chilling abuse. The failure of litigation as a deterrent is due in part to a confluence of legal and situational factors—doctrinal deference, statutory hurdles, and the many difficulties associated with litigating a civil rights case against one’s jailers—that make prison-conditions cases virtually impossible to win. We call this combination of factors “practical immunity.” Practical immunity amounts to a formidable barrier against successful prison-conditions …

Doctors On The Take: Aligning Tort Law To Address Drug Company Payments To Prescribers, Lars Noah

Buffalo Law Review

The pharmaceutical and medical device industries aggressively market their wares to health care professionals, and the giving of gifts has become a central feature of this process. Most observers regard financial incentives tied to the use of specific therapeutic products as ethically impermissible, and various institutions have tried combating inappropriate gifts and payments to physicians: medical and industry groups adopted voluntary codes, federal agencies published advisory guidelines, and, most recently, state and federal legislatures enacted reporting laws. Self-regulation, threats of prosecution, and transparency initiatives have tempered the practice, but manufacturers continue to find clever ways of purchasing the loyalty of …

A Content Analysis Of Section 1983 Litigation Against Reserve Police Officers, Michael Ryan Broadus

Master's Theses

Police studies have well developed a demonstrative framework for detailing risks which generate financially-detrimental civil litigation – particularly regarding 42 U.S.C. §1983. Conversely, though, police studies have given little attention to the often-used but differentially-trained reserve police officer. Primarily replicating the methodologies of Kappeler, Kappeler, and del Carmen (1993) and Ross (2000), this descriptive study sought to fill this void via a manifest content approach to purposively select a sample of Section 1983 cases decided by U.S. District Courts over a 16-year period (2001-2016) to determine: (1) if significant liability was generated by reserve officers, (2) the main basis for …

Allocation Rules And The Stability Of Mass Tort Class Actions, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

This paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how the method for allocating the class recovery interacts with other factors---the shape of the damage claims distribution, the scale benefits of the class action, and the plaintiffs' probability of prevailing at trial and bargaining power in settlement …

Crashworthiness: The Collision Of Sellers' Responsibility For Product Safety With Comparative Fault, F. Patrick Hubbard, Evan Sobocinski

Faculty Publications

Crashworthiness cases often involve the following issue: Should any wrongdoing by the plaintiff in causing the initial collision reduce or bar the plaintiff’s recovery for defective crashworthiness? Jurisdictions disagree on the answer to this issue. This disagreement results in large part from differing positions on two questions. First, should products liability law use duty rules to impose liability in a way that ensures efficient accident cost reduction or should it seek fairness through relatively unstructured jury allocations of liability based on fault? Second, in addressing the first issue, should for-profit corporations be viewed as: (1) “tools” to achieve human goals …

Jackson V. Dackman Co.: The Legislative Modification Of Common Law Tort Remedies Under Article 19 Of The Maryland Declaration Of Rights, Dan Friedman

Maryland Law Review

No abstract provided.

Take-Home Toxin: Following Kesner’S Lead And Creating A Consistent Framework For Determining Duty Toward Victims Of Secondary Asbestos Exposure, Brendan Kelly

Maryland Law Review

No abstract provided.

Out Of Thin Air: Trade Secrets, Cybersecurity, And The Wrongful Acquisition Tort, Sharon Sandeen

Minnesota Journal of Law, Science & Technology

No abstract provided.

Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk

St. Mary's Journal on Legal Malpractice & Ethics

Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate in its conclusion …

Accidents And Aggregates, Lee Anne Fennell

William & Mary Law Review

Tort law responds to discrete, harmful events—“accidents”—by converting unruly facts into a binary on/off judgment about liability. This operation, characteristic of much of law, resembles the “thresholding” process used to convert grayscale images to black and white. It embeds decisions about how to isolate and evaluate the sample of risk-related behavior connected to the accident. This Article focuses on the implicit but powerful role that aggregation—of behavior, precautions, and events—plays in the determination of liability. These aggregative choices determine how large a slice of an injurer’s conduct tort law will capture within its viewfinder, and how tight the causal connection …

South Africa’S Historic Silicosis Class Action: Why The Settlement Matters, Penelope Andrews

Other Publications

No abstract provided.

Crashed Software: Assessing Product Liability For Software Defects In Automated Vehicles, Sunghyo Kim

Duke Law & Technology Review

Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new …

The Privacy Of The Public Schools, Emily Suski

Maryland Law Review

This Article compares the liability of the public schools with that of families for harms to children in their care. Families serve as an apt vehicle for comparative analysis because families’ and schools’ responsibilities for children overlap substantially. Despite these overlapping responsibilities, however, the law allows schools to evade liability for harms to children and penalizes families for the same or similar harms.

Drawing on feminist theory on privacy and the public/private divide, this Article argues that the limits of public school liability mean they have privacy. Feminist theorists identify privacy as freedom from regulation and intrusion into decision-making. Public …

Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?, Tatiana E. Posada

Georgia State University Law Review

Imagine a couple that is unable to conceive a child naturally. Luckily, they had the money and resources available to them to conceive a child through assisted reproductive technology (ART), so they decided to start their family through the use of intrauterine insemination. They selected a sperm bank and began the arduous process of selecting a sperm donor who fit the desired traits and characteristics for their child. The sperm bank matched them with an anonymous donor, Donor 9623, and assured the couple that the donor was “a healthy male with an IQ of 160, a bachelor’s of science in …

A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery

Georgia State University Law Review

In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took to …

United States V. Osman: Including Future Therapy Costs In Mandatory Restitution Awards Is The Growing Trend Among Circuits, But Is It Wise?, Mary Theresa Mahfoud

Mercer Law Review

Mandatory restitution awards for child victims of sex crimes and child pornography now include future therapy costs. This trend, while theoretically increasing the amount of restitution awarded to the victim, can have unintended harmful consequences. The United States Court of Appeals for the Eleventh Circuit in United States v. Osman, as a matter of first impression, upheld a restitution order under the Mandatory Restitution for Sexual Exploitation of Children Act (Mandatory Restitution Act) to include future therapy expenses.

William Edward Osman pleaded guilty in the United States District Court for the Middle District of Florida to the possession, production, …

Qualified Immunity At Trial, Alexander A. Reinert

Articles

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. …

Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", Christopher J. Cotnoir

Maine Law Review

The Maine Employment Security Law governs whether one person performing services for another is an independent contractor or an employee for unemployment tax purposes. It requires many employers to pay unemployment taxes on individuals who, under the usual common law rules governing the employer-employee relationship, are independent contractors. This result, caused partly by the structure of the statute and partly by judicial interpretation, has the effect of discouraging business expansion, limiting entrepreneurial opportunities, and ultimately, hampering statewide economic development. This Comment first provides the historical background of unemployment compensation legislation at the federal and state levels. Employer liability and employee/independent …

Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly

Public Land & Resources Law Review

Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.

Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, Jennifer S. Begel

Maine Law Review

This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While the …

Protecting Discretion: Judicial Interpretation Of The Discretionary Function Exception To The Federal Tort Claims Act, Donald N. Zillman University Of Maine School Of Law

Maine Law Review

In 1996 the Federal Tort Claims Act turns fifty. Few statutes reach the half-century mark only slightly amended and with their primary purposes still intact. The Federal Tort Claims Act is one such rare statute. The purpose of the Federal Tort Claims Act (FTCA) was to make the United States liable for the torts of its employees committed in the scope of their employment. Today that sounds commonplace. Half a century ago, however, a considerable legislative effort was needed to overturn the doctrine of sovereign immunity that forbade the recovery of tort damages against the United States. Congress's rejecting sovereign …

The Unsettling Effect Of Maine Law On Settlement In Cases Involving Multiple Tortfeasors, Arlyn H. Weeks

Maine Law Review

When more than one person or entity causes injury to another, the multiple tortfeasors are jointly and severally liable to the injured party under Maine law. Maine has also provided since 1965 for comparison of the negligence of plaintiffs and defendants so that a plaintiff may not recover if his causative negligence is found to have equaled or exceeded that of the defendant. In addition, title 14, section 156 of the Maine Revised Statutes gives to each defendant the right to request that the jury allocate percentages of fault “contributed by each defendant.” Finally, title 14, section 163 of the …

Sailing Under False Colors: The Continuing Presence Of Negligence Principles In "Strict" Products Liability Law, Richard C. Ausness

Law Faculty Scholarly Articles

Dean Prosser, in his celebrated article, The Assault Upon the Citadel, compared the assault on warranty law's privity requirement to an attack on a stoutly defended fortress during the Middle Ages. Since that time, another conflict has arisen among students of products liability, namely whether product sellers should be subject to strict liability or whether certain aspects of this field should instead be controlled by negligence principles. However, unlike the assault some sixty years ago on the privity requirement, this present conflict bears a greater resemblance to the protracted trench warfare of World War I than it does to the …

Domestic Violence And Gender Equality: Recognition, Remedy, And (Possible) Retrenchment, Jennifer Wriggins

Faculty Publications

This paper is based on the author's presentation at the gender equality symposium. Professor Wriggins connects domestic violence and gender equality before tuming to some significant reforms of the U.S. legal system concerning domestic violence-all of them relatively recent. Moving on, she discusses her reflections on the 12 year law practice that informs her expertise before becoming a law professor and also her long involvement in the movement for LGBTQ equality. Drawing on that experience, Professor Wriggins shares firsthand views of some of the consequences of not having legal protections. Outlining some of the shortcomings and critiques of the reforms, …

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 …