Law Commons^™

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Exemption From The Common Fate: Refuge For Individual Debtors Trapped By Structured Settlements, Factoring Companies, And The Bankruptcy Code In Georgia, Michael C. Sullivan

Georgia Law Review

While the number of tort filings has been increasing in recent decades, the number of trials resulting from these claims has been steadily declining. Instead of sacrificing time and resources in court, parties choose settlement, frequently in the form of a structured settlement where payments are dispersed over a period of time. These structured settlements provide much-needed security for tort victims, particularly those who unable to work and are especially vulnerable to losing their settlements. But what happens when these victims find that they have expenses that they cannot cover with their deferred payments? Many tort victims wind up facing …

Laissez Fair:The Case For Alternative Litigation Funding And Assignment Of Lawsuit Proceeds In Georgia, David T. Adams

Georgia Law Review

This Note discusses the value of alternative litigation funding (ALF) and the legal challenges affecting the ALF industry in Georgia. More specifically, it identifies a way to maximize ALF's benefits for plaintiffs with personal tort and employment discrimination claims. Tort victims who are rendered incapable of working, and employees who have lost jobs because of workplace discrimination or retaliation,face immediate financial burdens-they may be unable to afford food, housing, health care, transportation, and other necessities. This economic pressure often forces plaintiffs to settle quickly for less than the value of the harm inflicted. But ALF companies offer a workable solution …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

The Original Source Of The Cause Of Action In Federal Courts: The Example Of The Alien Tort Statute, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a …

What Happens If We Call Discrimination A Tort?, Anthony J. Sebok

Articles

No abstract provided.

Tort Reform And Jury Instructions, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

This article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil OUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.

Summary Of Sadler V. Pacificare Of Nevada, Inc., 130 Nev. Adv. Op. 98, Hayley Miller

Nevada Supreme Court Summaries

The Court determined (1) when stating a claim for a negligence action in which medical monitoring is sought as a remedy, a plaintiff may satisfy the injury requirement by alleging that additional medical monitoring is reasonably required beyond the standard recommendations.

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

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, which is designed to help judges and legal practitioners understand and efficiently navigate complex …

The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente

Nevada Supreme Court Summaries

The voluntary payment doctrine provides an affirmative defense to a claim for the recovery of money that a plaintiff voluntarily paid. The duress/coercion exception to the voluntary payment doctrine requires the plaintiff show no reasonable alternative to payment existed. Additionally, the defense of property exception requires the plaintiff show an imminent risk of losing the property.

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2013 and May 31, 2014. During this survey period, the Georgia Supreme Court decided several cases of significance in the medical malpractice arena, and a seven-judge panel of the Georgia Court of Appeals was called upon to decide a slip-and-fall case. Some might argue that a few of these cases were victories for the plaintiff's bar. However, a close reading of the opinions reflects some well-reasoned and impressive legal arguments concerning the gross negligence and summary judgment standards applied by Georgia's appellate jurists. These opinions will be cited …

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products …

Should Neither Wind Nor Rain Nor Hurricane Keep Victims From Recovery? Examining The Tort And Insurance Systems’ Ability To Compensate Hurricane Victims, Kathleen A. Zink

Fordham Law Review

Large-scale natural disasters, such as hurricanes, wreak tremendous havoc, causing billions of dollars in damages.  Those who suffer serious damage may turn to their insurance providers or the tort system for compensation.  But, both the tort and insurance systems present serious limitations to a hurricane victim’s recovery.  This Note analyzes the goals and criticisms of these two systems to determine which compensates hurricane victims best.  In light of its analysis, this Note ultimately concludes that neither system satisfactorily compensates victims.  Yet, tort could play some role in hurricane-related damage.  Tort law could effectively deter negligent behavior by imposing liability on …

A Rare Case Of Conspiracy By Lawful Means, Pey Woan Lee

Research Collection Yong Pung How School Of Law

Conspiracy by lawful means is a well-known anomaly in the law of torts. The anomaly lies in the fact that the tort imposes liability on two or more persons acting in concert to pursue a course of conduct that is otherwise lawful when committed by a sole actor. Of course, it is a critical element of the tort that the conspirators must have acted with the predominant intention to cause harm to the victim, but it is well settled that malicious intent is not, by itself, a sufficient basis for founding liability. It would thus seem that it is the …

Brief For Respondent. United States V. Wong, 134 S.Ct. 2873 (2014) (No. 13-1074), 2014 Wl 5804278, Eric Schnapper, Tom Steenson, Beth Creighton, Michael Rose

Court Briefs

QUESTIONS PRESENTED

1. Is the six-month limit on filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), jurisdictional?

2. If the six-month limit for filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is not jurisdictional, is it subject to equitable tolling?

Who's The Bully Now? The Third Circuit Gives Negligent School Districts A Constitutional "Hall Pass" In Morrow V. Balaski, Leaving Bullied Students Out In The Cold, Nicholas Karwacki

Villanova Law Review (1956 - )

No abstract provided.

Reforming The Consumer Class Action, Elizabeth Chamblee Burch

Presentations and Speeches

Professor Elizabeth Chamblee Burch was part of a panel on Reforming the Consumer Class Action. This was part of a conference entitled: The Future of Class Action Litigation: A View From the Consumer Class that took place at the New York University School of Law on November 7, 2014

Not Just For Products Liability: Applying The Economic Loss Rule Beyond Its Origins, Danielle Sawaya

Fordham Law Review

    Most litigants, if given the chance, prefer to assert tort theories to recover their economic losses, rather than rely on the remedies provided under contract law. This is primarily because plaintiffs have the potential to recover more damages under tort law than contract law. However, most courts have adopted a doctrine known as the economic loss rule to bar plaintiffs from asserting certain tort theories to recover for their economic loss. Although the economic loss rule may seem like an easy way to maintain the boundary between tort law and contract law, confusion abounds when courts attempt to determine the …

To Enforce A Privacy Right: The Sovereign Immunity Canon And The Privacy Act’S Civil Remedies Provision After Cooper, Daniel J. Dimatteo

Florida Law Review

In 2005, a joint investigation between separate government agencies revealed that Stanmore Cooper, a pilot, failed to disclose to the Federal Aviation Administration that he was HIV positive. Cooper sued the agencies in the United States District Court for the Northern District of California, claiming that they violated the Privacy Act by disclosing his medical records to one another without his consent. Alleging that the unlawful disclosure of his condition caused him severe emotional distress, Cooper sought monetary relief under the Privacy Act’s civil remedies provision, which establishes a cause of action against the government for “actual damages.” The dispositive …

Small Claims, Big Recovery: Proposals For Settlement In Florida’S Small Claims Courts Post-Nichols, Laura M. Beard

Florida Law Review

After a debilitating car accident left Shannon Nichols injured and saddled with nearly $10,000 in medical bills, she sought only one thing—a road to recovery. Instead, Nichols faced a harrowing reality—after turning down a proposal for settlement from her insurer and losing at trial, not only did Nichols fail to receive reimbursement for her medical expenses, but she also was forced to pay her insurer’s attorneys’ fees and costs, an amount totaling over $23,000.

Can A Professional Limit Liability Contractually Under Florida Law?, John Terwilleger

Florida Law Review

Florida law is currently unclear on the issue of whether a professional may rely upon a limitation of liability clause in a professional services contract. Limitation of liability clauses are common in business contracts, especially in construction, a field that includes many professionals such as engineers and architects. While Florida has historically enforced limitation of liability clauses in professional services contracts, recent cases have cast doubt on whether the clauses are enforceable. If the Florida Supreme Court establishes that professionals cannot rely upon these clauses, it will be taking a position contrary to the majority of states, including New York, …

The Recognition And Enforcement Of Punitive Damage Awards In Germany: Recent Developments, Andre R. Fiebig

Georgia Journal of International & Comparative Law

No abstract provided.

Recovery For Mental Injuries That Are Accompanied By Physical Injuries Under Article 17 Of The Warsaw Convention: The Progeny Of Eastern Airlines, Inc. V. Floyd, Jean-Paul Boulee

Georgia Journal of International & Comparative Law

No abstract provided.

Carriage Of Hazardous Cargoes By Sea - The Hns Convention, Peter Wetterstein

Georgia Journal of International & Comparative Law

No abstract provided.

Port State Control: Strong Medicine To Cure A Sick Industry, John Hare

Georgia Journal of International & Comparative Law

No abstract provided.

Exclusivity Of The Warsaw Convention's Cause Of Action: The U.S. Supreme Court Removes Some Of The Expansive Views Foundations In Zicherman V. Korean Air Lines Co. Ltd., Brian S. Tatum

Georgia Journal of International & Comparative Law

No abstract provided.

Yamaha V. Calhoun: The Supreme Court Allows State Remedies In Certain Wrongful Death Cases In Admiralty, Nicolas R. Foster

Georgia Journal of International & Comparative Law

No abstract provided.

Cgmp Violations Should Not Be Used As A Basis For Fca Actions Absent Fraud, Kyle Faget

Seattle University Law Review

Since Congress amended the False Claims Act (FCA) in 1986, the statute has evolved into a seemingly boundless weapon for enforcing other statutes and regulations applicable to every industry that accepts any form of government funding. Use of the FCA by the Department of Justice (DOJ) and by private citizens bringing actions on behalf of the U.S. government to enforce other statutes and regulations is particularly evident in the field of health care. The FCA has been utilized in actions where the allegations include off-label promotion of drugs, kickbacks, and violations of current good manufacturing practices (cGMPs) by linking the …

Fantasy Sports And The Right Of Publicity Are Under Further Review, Christopher Miner

Touro Law Review

No abstract provided.