Law Commons^™

Making Liquor Immunity Worse: Nevada's Undue Protection Of Commercial Hosts Evicting Vulnerable And Dangerous Patrons, Jeffrey W. Stempel

Nevada Law Journal

No abstract provided.

A Theory Of Local Common Law, Annie Decker

Cardozo Law Review

No abstract provided.

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Teo Wei Hsin Lawrence (Zhang Weixin), Tin Yan Ying Geraldine (Cheng Yanying Geraldine) v Management Corporation Strata Title Plan No 1525 [2014] SGDC 350 involved a suit by the owners of a condominium unit (the plaintiffs) against the management corporation of the development (the defendant). Three months after purchasing the unit, the plaintiffs undertook renovation works which were completed after about five months. Prior to moving in, the plaintiffs discovered mould on the interior walls and on their new cabinets located at the rear end of the unit. As the unit was in the corner of the development, the outside …

Summary Of Libby V. Eight Judicial District Court, 130 Nev. Adv. Op. 39, Allison Vitangeli

Nevada Supreme Court Summaries

The Court determined two issues: (1) when NRS 41A.097(2)’s three-year medical malpractice statute of limitation period commences; and (2) whether the time to file the complaint was properly tolled in accordance with NRS 41A.097(3).

Supreme Court, New York County, Renco Group, Inc. V. Workers World Party, Inc., Edward Puerta

Touro Law Review

No abstract provided.

No Adequate Recompense For Destruction: The Constitutionality Of The New York Medical Malpractice Statute Of Limitations As Applied To Misdiagnosis Of Latent Disease, Lillian M. Spiess

Touro Law Review

No abstract provided.

What Do We Talk About When We Talk About Control, Anthony J. Sebok

Articles

Despite the recent rejection by the ABA of attempts to weaken the limitations on the sharing of fees with non-lawyers, pressure to allow laypersons to invest in lawsuits remains. This article looks at one argument against lay investment in litigation, which is that laypersons should not be able to control how litigation is conducted.

Recent Developments: Broussard V. State And The Not So Obvious Application Of The Open And Obvious Doctrine, John M. Church

Louisiana Law Review

The article discusses Louisiana Supreme Court tort case Broussard v. State based on the open and obvious doctrine. Topics discussed include procedural history of Broussard case, Court case Murray v. Ramada Inns Inc. and the U.S Second Circuit Court of Appeals opinion in case Michalski v. Home Depot. It informs that the open and obvious doctrine eliminates landowner liability to business visitors resulting from open and obvious dangers restatement.

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

America's (Not So) Golden Door: Advocating For Awarding Full Workplace Injury Recovery To Undocumented Workers, Paul Holdsworth

University of Richmond Law Review

No abstract provided.

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one clear obstacle …

Inexcusable Wrongs, John C.P. Goldberg

Sibley Lecture Series

John Goldberg, Goldston Professor of Law at Harvard University, presented “Inexcusable Wrongs” as the University of Georgia School of Law’s 111th Sibley Lecturer on April 11 at 3:30 p.m. in the Hatton Lovejoy Courtroom of Hirsch Hall.

An expert in tort law, tort theory and political philosophy, Goldberg discussed how tort law has little patience for excuses while criminal law is more forgiving. He offered a unified account of many of tort law’s core features as well as a broadened understanding of what it means for law to identify conduct as wrongful and for law to set up schemes for …

Of Bitcoins, Independently Wealthy Software, And The Zero-Member Llc, Shawn Bayern

NULR Online

No abstract provided.

The Role Of Litigation In The Fight Against Prescription Drug Abuse, Richard C. Ausness

Law Faculty Scholarly Articles

Prescription drug abuse problems have prompted a number of responses by both drug users (and abusers) and by various federal and state government agencies.

Part I of this Article examines the impressive array of liability theories that individual litigants have relied upon in their lawsuits against Purdue. These theories include: negligence; strict products liability, including design defect and inadequate warning claims; breach of the implied warranty of merchantability; violation of state consumer protection statutes; negligent marketing; fraudulent misrepresentation; civil conspiracy; and "malicious conduct." Purdue, the company that developed OxyContin, has pursued an aggressive "no settlement" policy and has chosen to …

Corrective Justice As Making Amends, Erik Encarnacion

Buffalo Law Review

No abstract provided.

Invading The Realm Of The Dead: Exploring The (Im)Propriety Of Punitive Damage Awards Against Estates, Emily Himes Iversen

University of Michigan Journal of Law Reform

Punitive damages are traditionally understood, at least in part, as damages designed to punish. It should therefore come as no surprise that, in the majority of states that have decided the issue, courts have chosen not to allow punitive damage awards against the estates of deceased tortfeasors. After all, the tortfeasor can no longer be punished (at least by tort awards). Nonetheless, punitive damages can also serve other purposes, such as deterrence. This Note argues that Michigan, a state which has not yet taken a stance, should adopt the minority position that allows punitive damages to be awarded against estates. …

Unequal Protection Under The Law: Why Fda Should Use Negotiated Rulemaking To Reform The Regulation Of Generic Drugs, Marie Boyd

Cardozo Law Review

The duty to ensure the safety of drug products, through adequate warnings or other means, should ultimately rest with the drug's manufacturer regardless of whether the drug is a generic drug or a brand-name drug. Recent U.S. Supreme Court holdings, however, suggest that while the manufacturer of a brand-name drug is always responsible for its label's content, this is not the case for generic drugs. In addition, by holding that failure-to-warn claims against generic drug manufacturers based on state law are preempted, the Court has removed the protections and compensation that state tort law can provide consumers of generic drugs …

“Meet Me Halfway”: Arm Wrestling And The Law, Thomas M. Byron

Pace Intellectual Property, Sports & Entertainment Law Forum

Most law review articles are very serious, and with good reason. They discuss important, world-changing matters like the role and magnitude of executive power, the limits of Constitutional rights, the boundaries of international law, and the vagaries of civil procedure. This Article has no such world-changing or reverent pretentions; it instead takes a light-hearted view of a fairly marginal legal topic: arm wrestling. To provide a spine for the discussion, the Article leans heavily on the 1980s movie Over the Top – a movie about arm wrestling, trucking, and child custody - to provide examples of arm wrestling content with …

Suing Americans For Human Rights Torts Overseas: The Supreme Court Leaves The Door Open, Douglass Cassel

Journal Articles

If American citizens or corporations commit gross violations of human rights against foreign victims on foreign shores, can the victims sue the Americans for damages in United States federal courts? Until recently the answer was clearly yes. However, following the diverse opinions in the Supreme Court’s 2013 ruling in Kiobel v. Royal Dutch Petroleum Co., the question has divided lower courts to date.

This Article argues that, as a matter of both domestic and international law, and under both the majority and minority rationales in Kiobel, federal courts can and should hear tort suits against American nationals for human rights …

Litigation Investment And Legal Ethics: What Are The Real Issues?, Anthony J. Sebok

Articles

One of the foundational principles of legal ethics is that the lawyer owes an obligation of undivided loyalty to the client, and no other interests or relationships can be permitted to interfere with the lawyer's exercise of independent professional judgment on behalf of the client. The strongest objections to litigation investment by third parties is that it may compromise a lawyer's independence. This article examines this objection in the context of a recent report from the Ethics Committee of the Commercial and Federal Litigation Section of the New York State Bar Association and argues that it misses the real legal …

Two Myths About The Alien Tort Statute, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

In Kiobel v. Royal Dutch Petroleum Co., the Supreme Court applied the presumption against extraterritorial application of U.S. law to hold that the Alien Tort Statute (ATS) did not encompass a claim between aliens for misconduct that occurred in another nation. Without much elaboration, the Court stated that the ATS only encompasses claims that “touch and concern the territory of the United States . . . with sufficient force to displace the presumption.” As it did in Sosa v. Alvarez-Machain, the Kiobel Court purported to rest its decision on the original public meaning of the ATS when enacted in 1789. …

National Geographics: Toward A “Federalism Function” Of American Tort Law, Riaz Tejani

San Diego Law Review

This Article will situate the federalism function among existing scholarly frameworks and assess the “contoured” approach to federal and state power balancing across the existing subject matter of torts. Part II will assess conflicting characterizations of tort law as on one hand “private” and on the other “public” law. Part III will define and explain competing functions of tort law with an eye to whether federalism fits the common criteria of these coexisting objectives, goals, purposes, and methods for adjudication. In Part IV, the Article will explore historical and contemporary roles of federalism to understand why this process becomes so …

Houston, We Have A (Liability) Problem, Justin Silver

Michigan Law Review

The development of private manned space flight is proceeding rapidly; there are proposals to launch paying passengers before the end of 2014. Given the historically dangerous nature of space travel, an accident will probably occur at some point, resulting in passengers’ injury or death. In the event of a lawsuit stemming from such an accident, a court will likely find that a space flight entity operating suborbital flights is a common carrier, while an entity operating orbital flights is not. Regardless of whether these entities are common carriers, they face a threat of high levels of liability, as well as …

When Ferae Naturae Attack: Public Policy Implications And Concerns For The Public And State Regarding The Classification Of Indigenous Wildlife As Interpreted Under State Immunity Statutes, L. Reagan Florence

Journal of Public Law and Policy

Generally, most states have Immunity Statutes that grant municipal entities, and the government, immunity from particular tort-suit liabilities. Every state has a varied list of elements and factors that fall under particular municipality protection. One such protection is for when injuries arise from a “natural condition”, which has been interpreted to include many natural elements like: a rushing river; an avalanche, falling rocks, heavy rain, etc. But what about wildlife—especially indigenous wildlife? This article examines a case recently decided by the Utah Supreme Court, which involved the horrific story of an 11-year-old boy who was stolen from his tent by …

Ex-Post Right, Ex-Ante Wrong, Ariel Porat

Notre Dame Law Review

Should a doctor be held liable under negligence law for harmful treatment she administered to a patient, if the treatment should have been considered negligent at the time it was administered, but is now considered reasonable at the time of trial? Should a manufacturer be held liable for harm caused to a consumer from a product that is considered reasonable, and therefore nondefective, at the time of trial, but that should have been considered unreasonable, and therefore defective, at the time of its distribution? More generally put: Should the law impose liability for ex-post right but ex-ante wrong behaviors? The …

Challenging Hospital Vbac Bans Through Tort Liability, L. Indra Lusero

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Abusing The Computer Fraud And Abuse Act: Why Broad Interpretations Of The Cfaa Fail, Samantha Jensen

Hamline Law Review

Abstract

Finding Fault?: Exploring Legal Duties To Return Incidental Findings In Genomic Research, Elizabeth R. Pike, Karen H. Rothenberg, Benjamin E. Berkman

Faculty Scholarship

The use of whole genome sequencing in biomedical research is expected to produce dramatic advances in human health. The increasing use of this powerful, data-rich new technology in research, however, will inevitably give rise to incidental findings (IFs), findings with individual health or reproductive significance that are beyond the aims of the particular research, and the related questions of whether and to what extent researchers have an ethical obligation to return IFs. Many have concluded that researchers have an ethical obligation to return some findings in some circumstances, but have provided vague or context-dependent approaches to determining which IFs must …

Apportioning Liability In Maryland Tort Cases: Time To End Contributory Negligence And Joint And Several Liability, Donald G. Gifford, Christopher J. Robinette

Faculty Scholarship

The Article presents a comprehensive proposal for assigning liability in tort cases according to the parties’ respective degrees of fault. The authors criticize the Court of Appeals of Maryland’s recent decision in Coleman v. Soccer Association of Columbia declining to abrogate contributory negligence, particularly the court’s notion that it should not act because of the legislature’s repeated failure to do so. The Article provides a comprehensive analysis of the advantages and disadvantages of comparative fault, including its effect on administrative costs, claims frequency, claims severity, insurance premiums, and economic performance. The authors propose the legislative enactment of comparative fault and …