Law Commons^™

Should We Use A Class Action's Impact On Stock Price To Gauge The Reasonableness Of Class Counsel's Fee?, John Fitzgerald Ready

Cornell Journal of Law and Public Policy

If a deterrence rationale fuels the engine that is class action litigation, then its principles should inform our efforts to cure the imperfections in class counsel compensation schemes. Class action defendants are deterred from wrongdoing when it becomes economically unwise to act as such. For publicly-traded companies, the economic prudence of their conduct depends on shareholder perception. Class actions are bad news for shareholders of the named defendant public company. In response, the market reacts, a company’s share price decreases, and a message is sent to the company about the imprudence of its conduct. A question then arises: should we …

2017 Annual Survey: Recent Developments In Sports Law, Jordan Lysiak, Katherine Hampel

Marquette Sports Law Review

None

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

All Faculty Publications

The law and practice of solitary confinement continues to be a source of rights violations in Canadian prisons. The practice, formally known as administrative segregation, isolates prisoners for 23 hours a day in dehumanizing conditions of confinement. In this paper, I examine the extent to which the tort of false imprisonment can compensate prisoners for unlawful or excessive segregation placements. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by segregation none have examined the application of this tort. I argue that because of its focus on liberty, dignity, and …

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

Opioid Addiction Litigation And The Wrongful Conduct Rule, Samuel Fresher

University of Colorado Law Review

The United States is facing an opioid addiction crisis. Can our civil courts help? This Comment explores obstacles to recovery for plaintiffs in tort suits against health care institutions and practitioners in opioid addiction litigation. It argues that defenses based on plaintiffs' wrongful conduct, which deny plaintiffs access to civil remedies due to their immoral or illegal conduct, should be eliminated or avoided in suits arising out of addiction. This Comment concludes that comparative fault principles adequately protect the interests of plaintiffs and defendants in drug addiction suits and advance important public policy goals. Finally, this Comment suggests that irrespective …

Duty, Foreseeability, And Montemayor V. Sebright Products, Inc., Mike Steenson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Institutional Liability For Employees’ Intentional Torts: Vicarious Liability As A Quasi-Substitute For Punitive Damages, Catherine M. Sharkey

Valparaiso University Law Review

No abstract provided.

Flying Inside America's Drone Dome And Landing In Aerial Trespass Limbo, Kyle Joseph Farris

Valparaiso University Law Review

No abstract provided.

Evil Nudges, Michal Lavi

Vanderbilt Journal of Entertainment & Technology Law

The seminal book Nudge by Richard Thaler and Cass Sunstein demonstrates that policy makers can prod behavioral changes. A nudge is "any aspect of the choice architecture that alters people's behavior in a predictable way without forbidding any options or significantly changing their economic incentives." This type of strategy, and the notion of libertarian paternalism at its base, prompted discussions and objections. Academic literature tends to focus on the positive potential of nudges and neglects to address libertarian paternalism that does not promote the welfare of individuals and third parties, but rather infringes on it-a concept this Article refers to …

Choosing Medical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Modern principles of patient autonomy and health care consumerism are at odds with medical malpractice law's traditional skepticism towards the defenses of contractual waiver and assumption of risk. Many American courts follow a patient-protective view, exemplified by the reasoning in the seminal Tunkl case, rejecting any attempts by physicians to relieve themselves of liability on the grounds of a patient's agreement to assume the risk of malpractice. However, where patients pursue unconventional treatments that satisfy their personal preferences but that arguably fall outside the standard of care, courts have good reason to be more receptive to such defenses. This Article …

International Cybertorts: Expanding State Accountability In Cyberspace, Rebecca Crootof

Law Faculty Publications

States are not being held accountable for the vast majority of their harmful cyberoperations, largely because classifications created in physical space do not map well onto the cyber domain. Most injurious and invasive cyberoperations are not cybercrimes and do not constitute cyberwarfare, nor are states extending existing definitions of wrongful acts permitting countermeasures to cyberoperations (possibly to avoid creating precedent restricting their own activities). Absent an appropriate label, victim states have few effective and nonescalatory responsive options, and the harms associated with these incidents lie where they fall.

This Article draws on tort law and international law principles to construct …

Hands On The Wheel: A Call For Greater Regulation Of Semi-Autonomous Cars, Tracy Hresko Pearl

Faculty Articles

The United States is in the midst of a driverless car revolution. Semi-autonomous cars — those that can steer, accelerate, and brake on their own under certain circumstances — are already available to consumers. Fully autonomous cars will be available within the decade. The federal government and states throughout the nation have responded to these developments by rushing to pass laws designed to regulate the fully autonomous cars that are coming while largely ignoring the semi-autonomous cars that are already on U.S. roads. This is an extremely troubling oversight. New studies suggest that semi-autonomous vehicles are likely far more dangerous …

2017 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades Of Litigation Under The Fair Housing Act And The Supreme Court Still Can't Say For Sure Who Is Protected, David A. Logan

Law Faculty Scholarship

No abstract provided.

How The U.S. Supreme Court Deemed The Workers' Compensation Grand Bargain 'Adequate' Without Defining Adequacy, Michael C. Duff

All Faculty Scholarship

During the second and third decades of the twentieth century, the U. S. Supreme Court issued a handful of opinions rejecting 14th Amendment constitutional challenges by employers to implementation of workers’ compensation statutes in the United States. Unknown to many, the statutes were largely the fruit of privately-sponsored investigations, principally by the Russell Sage Foundation and the National Association of Manufacturers, of European workers’ compensation systems during the first decade of the twentieth century. Some of those systems had been in existence since the 1870s and 1880s, and many employers preferred them to newly-emerging American employer liability statutes that retained …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

What’S In A Name?: Proving Actual Damages For Reputational Harm In Texas Defamation Cases Will Only Get Harder, Austin Brakebill

SMU Law Review

No abstract provided.

Revisionist Municipal Liability, Avidan Y. Cover

Faculty Publications

The current constitutional torts system under 42 U.S.C. § 1983 affords little relief to victims of government wrongdoing. Victims of police brutality seeking accountability and compensation from local police departments find their remedies severely limited because the municipal liability doctrine demands plaintiffs meet near-impossible standards of proof relating to policies and causation.

The article provides a revisionist historical account of the Supreme Court’s municipal liability doctrine’s origins. Most private litigants’ claims for damages against cities or police departments do not implicate the doctrine’s early federalism concerns over protracted federal judicial interference with local governance. Meanwhile the federal government imposes extensive …

Cardozo And The Civil Jury, Michael D. Green, Ashley Dimuzio

Touro Law Review

No abstract provided.

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

All Faculty Publications

Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …

Recovering Wagner V. International Railway Company, Kenneth S. Abraham, G. Edward White

Touro Law Review

No abstract provided.

Palsgraf V. Long Island R.R.: Its Historical Context, William E. Nelson

Touro Law Review

No abstract provided.

Taxing Litigation: Federal Tax Concerns Of Personal Injury Plaintiffs And Their Lawyers, Gregg Polsky

Scholarly Works

This Article addresses the federal tax concerns ofpersonal injury plaintiffs and the lawyers who represent them, typically on a contingencyfee basis. It explains when plaintiffs' recoveries are taxable for income and employment tax purposes and whether and how those recoveries are required to be reported by defendants to the IRS. It also discusses whether attorney's fees and costs are deductible by plaintiffs.

In addition to these tax planning and compliance issues, the Article also considers when tax evidence might be admissible. Plaintiffs and defendants often try to introduce tax evidence in an effort to increase or decrease, respectively, the amount …

In The Privacy Of One's Own Home: Does New York State Law Prevent Invasions Of Privacy In The Home?, Madeline Kessler

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

The 'Blurred Lines' Of Marvin Gaye's 'Here, My Dear': Music As A Tortious Act, Divorce Narrative And First Amendment Totem, Bryan Adamson

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Captured At The Scene: A Proposal For The Admissibility Of Visually Recorded Scene Statements From Domestic Violence Complainants In Western Australia, Benjamin Procopis

Theses : Honours

In 2015, New South Wales introduced a legislative reform termed DVEC, which made admissible as evidence in chief, visually recorded statements from domestic violence complainants. Unlike other pre-recorded evidence, DVEC is captured at the scene of the incident, shortly after the event. The impetus for implementing DVEC was to overcome the issues identified with prosecuting domestic violence offences owing to the power imbalance in the relationship and the vulnerability of the complainant. In Western Australia, visually recorded statements from children and those with mental impairment are presently admissible for the same underpinning reasons. Police prosecutors and defence counsel participated in …

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …