Law Commons^™

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

Scholarly Works

This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.

Harmonizing European Tort Law And The Comparative Method A Review Of Basic Questions Of Tort Law From A Comparative Perspective (Helmut Koziol Ed., Sramek 2015), Michael Wells

Scholarly Works

This is a book review of Basic Questions of Tort Law from a Comparative Perspective, edited by Professor Helmut Koziol. This book is the second of two volumes on “basic questions of tort law.” In the first volume, Professor Helmut Koziol examined German, Austrian, and Swiss tort law. In this volume Professor Koziol has assembled essays by distinguished scholars from several European legal systems as well as the United States and Japan, each of whom follows the structure of Koziol’s earlier book and explains how those basic questions are handled in their own systems.

This review focuses on Professor Koziol’s …

Golden Road Motor Inn, V. Islam, Et. Al., 132 Nev. Adv. Op. 49 (Jul. 17, 2016), Heather Caliguire

Nevada Supreme Court Summaries

The Nevada Supreme Court held that non-compete agreements cannot extend further than what is reasonable and necessary to protect the interests of the employer and cannot create an undue hardship on the employee. It also held that courts may not “blue line” (“blue pencil”) contracts, that is change or delete terms to make the Contract legal. The Court further held that altering player contact information, so long as the information can be restored with minimal disruption to the gaming company does not rise to the level of conversion. Finally, the Court held that a gaming company is not liable for …

2015 Survey Of Rhode Island Law: Cases And Public Laws Of Note, Roger Williams University Law Review Staff

Roger Williams University Law Review

No abstract provided.

Private Dollars For Public Litigation: An Introduction, Anthony J. Sebok

Articles

The article argues that litigation investment—where third-party funders provide capital for lawsuits in exchange for a share of potential recoveries—should be extended to public litigation. It contends that the economic rationale for litigation investment applies equally to public entities, such as state Attorneys General, as it does to private litigants. The author highlights the funding gap in public litigation, particularly in large-scale cases against well-resourced defendants, and suggests that litigation investment could address this gap more effectively than contingent fee arrangements with private attorneys.

The Equipoise Effect, Bert Huang

Faculty Scholarship

This Essay explores an overlooked way to use the remedy of disgorgement in torts, contracts, and regulation. It begins with a reminder that disgorging net gains does not force the liable actor to take a loss; by definition, it allows him to break even. As a matter of incentives, it places him in a sort of equipoise. This equipoise effect has a logical upshot that might seem counterintuitive: Substituting disgorgement for any other remedy, part of the time, can emulate the incentive effect of using that other remedy all of the time.

In theory, then, courts or regulators can sometimes …

Editor's Introduction To The Symposium "Macpherson At 100: Reflections On Its Influence", Anthony J. Sebok

Articles

The article introduces a symposium that challenges the conventional narrative of MacPherson v. Buick Motor Co. as a decisive victory over the privity rule. It argues that the case's actual influence is more nuanced, misunderstood, or absent than commonly believed, suggesting that the meaning of landmark decisions is shaped by subsequent interpretation rather than the ruling alone.

The Affordable Care Act Is Not Tort Reform, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced …

Tort Reform: Blocking The Courthouse Door And Denying Access To Justice, Joanne Doroshow

Articles & Chapters

No abstract provided.

Agencies And Science-Experiment Risk, Eric E. Johnson

Faculty Articles

There is a curious absence of legal constraints on U.S. govern­ment agencies undertaking potentially risky scientific research. Some of these activities may present a risk of killing millions or even destroying the planet. Current law leaves it to agencies to decide for themselves whether their activities fall within the bounds of acceptable risk. This Article explores to what extent and under what circumstances the law ought to allow private actions against such non­ regulatory agency endeavors. Engaging with this issue is not only interesting in its own right, it allows us to test fundamental concepts of agency competence and the …

Kiobel And Extraterritoriality: Here, (Not) There, (Not Even) Everywhere, Edward T. Swaine

Oklahoma Law Review

No abstract provided.

Does Medical Malpractice Law Improve Health Care Quality?, Michael D. Frakes, Anupam B. Jena

Faculty Scholarship

Despite the fundamental role of deterrence in justifying a system of medical malpractice law, surprisingly little evidence has been put forth to date bearing on the relationship between medical liability forces on the one hand and medical errors and health care quality on the other. In this paper, we estimate this relationship using clinically validated measures of health care treatment quality constructed using data from the 1979 to 2005 National Hospital Discharge Surveys and the 1987 to 2008 Behavioral Risk Factor Surveillance System records. Drawing upon traditional, remedy-centric tort reforms — e.g., damage caps — we estimate that the current …

Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

Culpable participation in a fiduciary's breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as "aiding-and abetting" liability. What's controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is …

Culpable Participation In Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

This essay makes a case for the salience of tort law to fiduciary law, focusing on actors who culpably participate in a fiduciary's breach of duty, whether by inducing the breach or lending substantial assistance to it. Although the elements of this accessory tort are relatively settled in the United States, how the tort applies to particular categories of actors-most recently investment bankers who serve as M&A advisors-provokes controversy. The paper also explores the less developed terrain of primary actors who breach governance duties that are not fiduciary obligations because the entity's organizational documents eliminate fiduciary duties, as Delaware law …

Fiduciary Breach, Once Removed, Deborah A. Demott

Faculty Scholarship

No abstract provided.

The Elephant Not In The Room: Apportionment To Nonparties In Georgia, Michael K. Newman

Georgia Law Review

Apportionment to nonparties generally concerns defendants alleging that certain nonparties are also at fault for the plaintiffs harm. A defendant's successful allocation of fault to a nonparty results in the defendant shedding a portion of their liability toward the plaintiff. If joint and several liability has been abolished, then this means that the plaintiff will collect less damages from the named defendant. This Note addresses how current practice in Georgia allows the defendant to do this with very little effort. Specifically, this Note takes issue with a recent Georgia Court of Appeals decision, Double View Ventures, LLC v. Polite, 757 …

Employer Escape Hatch Closed In Georgia: How The Interpretation Of Georgia's Apportionment Statute In Zaldivar Prohibits Employers From Using Respondeat Superior To Eschew Direct Negligence Claims, Michael D. Alfano Jr.

Georgia Law Review

In Zaldivar v. Prickett, Prickett (plaintiff)was working on behalf of his employer (Overhead Door) when he collided with Zaldivar (defendant). Zaldivar filed a "Notice of Fault of Nonparty" under Georgia's apportionment statute; this had to effect of requiring a jury to consider the fault of Overhead Door, which had recently received three anonymous phone calls complaining about Prickett's driving. The Georgia Supreme Court held that Georgia's Apportionment statute required that fault be assigned to Overhead Door, despite Prickett's inability to recover from Overhead Door. In this Note, I vary the facts of Zaldivar: Zaldivar becomes Klutzy Kellie; Prickett becomes Prudent …

Causation Actually, J. S. Dillbary

Georgia Law Review

This Article debunks the consensus that in concerted
action, concurrent causes, and alternative liability
situations, the actual causation requirement is always
missing. While courts and scholars insist that in these
cases tort law holds liable parties who clearly did not
cause the victim's harm, this Article offers a novel
approach. Using a simple model and applying it to
leading decisions, this Article shows that a party who did
not and could not even potentially injure the victim could
nevertheless be a but-for reason for the harm. The Article
also challenges claims that causation theories like
concerted action, substantial factor and …

Technological Opacity, Predictability, And Self-Driving Cars, Harry Surden, Mary-Anne Williams

Publications

Autonomous or “self-driving” cars are vehicles that drive themselves without human supervision or input. Because of safety benefits that they are expected to bring, autonomous vehicles are likely to become more common. Notably, for the first time, people will share a physical environment with computer-controlled machines that can both direct their own activities and that have considerable range of movement. This represents a distinct change from our current context. Today people share physical spaces either with machines that have free range of movement, but are controlled by people (e.g. automobiles) or with machines that are controlled by computers, but highly …

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Piroozi V. Eighth Jud. Dict. Ct., 131 Nev. Adv. Op. 100 (Dec. 31, 2015), Jessie Folkestad

Nevada Supreme Court Summaries

Real parties in interest, Hurst and Abbington sought and obtained a pretrial order from the district court barring petitioners, Dr. Piroozi and Dr. Blahnik, from arguing comparative fault of settled defendants at trial and including those defendants’ names on the verdict forms. In granting the Writ of Mandamus filed by the petitioners, the Supreme Court of Nevada resolved a conflict between NRS 41.141(3) and NRS 41A.045, holding that NRS 41A.045 preempts NRS 41.141(3) and entitles a defendant to argue the percentage of fault of settled defendants at trial and to include the settled defendant’s names on the jury verdict form.

Newsroom: Logan On 2015'S Record Settlements, Roger Williams University School Of Law

Life of the Law School (1993- )

Also available @ http://law.rwu.edu/story/logan-2015s-record-settlements

Newsroom: Logan On Volkswagen Emissions, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Harrison V. Roitman, 131 Nev. Adv. Op. 92 (Dec. 17, 2015), Michael Coggeshall

Nevada Supreme Court Summaries

The Court determined that absolute immunity applies to party-retained expert witnesses as well as court appointed witnesses. Party-retained expert witnesses have absolute immunity from suits for damages arising from statements made in the course of judicial proceedings.

Radio Kol Baramah V. Kolech – Religious Women’S Forum, Yoram Danziger, Daphne Barak-Erez, Esther Hayut

Translated Opinions

The District Court certified the application of Kolech – Religious Women’s Forum Organization (hereinafter: Kolech) to bring a class action against the radio station Kol BaRamah Ltd. (hereinafter: the radio station), holding that the declared policy adopted by the radio station in the years 2009-2011, whereby women could not be heard on the station’s broadcasts, constituted prohibited discrimination under the Prohibition against Discrimination in Products, Services and Entry to Places of Entertainment and Public Places Law, 5761-2000 (hereinafter: Prohibition against Discrimination Law). (It should be noted that the change in the management of the radio station as of the year …

Product Liability, Franklin P. Brannan Jr., P. Michael Freed, Jake C. Evans

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2013 and May 31, 2015. It covers noteworthy cases decided during this period by the Georgia Court of Appeals, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

Articles

Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to discounting premium rates for insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort law …

Torts, Phillip Comer Griffeth, Cash V. Morris, Christopher R. Breault

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2014 and May 31, 2015.

Victim Compensation Funds And Tort Litigation Following Incidents Of Mass Violence, Paul Heaton, Ivan Waggoner, Jamie Morikawa

Buffalo Law Review

No abstract provided.