Law Commons^™

Feres Doctrine: "Don't Let This Be It. Fight!", 46 J. Marshall L. Rev. 607 (2013), Jennifer Zyznar

UIC Law Review

No abstract provided.

Intentional Grounding: Field Quality In The Nfl And The Legal Ramifications For Choice Of Playing Surfaces, 47 J. Marshall L. Rev. 115 (2013), Jennifer Simile

UIC Law Review

No abstract provided.

Corporate Liability Under The Alien Tort Statute: Can Corporations Have Their Cake And Eat It Too?, Alison Bensimon

Loyola University Chicago International Law Review

No abstract provided.

Kiobel And Extraterritoriality: A Rule Without A Rationale, David L. Sloss

Maryland Journal of International Law

No abstract provided.

The Economics And Perplexing Utah Law Of Prejudgment Interest, Mark A. Glick, James R. Kearl, Cory D. Sinclair

Utah OnLaw: The Utah Law Review Online Supplement

Legal rules are often designed to provide different incentives to plaintiffs and defendants. With regard to prejudgment interest, however, it is not clear why there should be a bias in either direction. Absent a convincing argument for leaning toward one party or the other, we conclude that as a normative matter, the ideal rule for prejudgment interest should be neutral with regard to delay: plaintiffs are compensated fully for delay and defendants pay the market rate for the benefits they implicitly derive from holding money that belongs to the plaintiff. This simple “neutrality rule” implies, of course, that all claims …

Survey Of Damages Measures Recognized In Negligence Cases Involving Animals, Alison M. Rowe

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Where Is Concussion Litigation Headed? The Impact Of Riddell, Inc. V. Schutt Sports, Inc. On Brain Injury Law, Cailyn Reilly

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Tort Liability In The Age Of The Helicopter Parent, Elizabeth G. Porter

Articles

Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct …

The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.

The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson

Faculty Scholarship

In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …

Taxing Anxiety, Morgan Holcomb

Faculty Scholarship

In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal.

My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming …

Head In The Clouds, Feet Firmly Grounded In Physical Proof: Emphasis On The Tangible In Actions Against Internet Search Engines And Aggregators, Briehan Moran

Student Works

No abstract provided.

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

UF Law Faculty Publications

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

Moral Obligations Of Landowners: An Examination Of Doctrine, Stewart E. Sterk

Articles

Efficiency concerns generally take center stage in modern discussions of property's institutional foundations. But property's moral dimension has a far longer pedigree. Two of the ten commandments implicitly acknowledge the importance of property. "Thou shalt not steal" has no meaning in the absence of property ownership. Similarly, the command that "thou shalt not covet your neighbor's house" assumes that the house has an owner whose rights merit respect.

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Articles

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …

Are Risks Wrong?, Anthony J. Sebok

Articles

No abstract provided.

Products Liability And Economic Activity: An Empirical Analysis Of Tort Reform's Impact On Businesses, Employment, And Production, Joanna Shepherd

Faculty Articles

For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most …

Florida's Motor Vehicle Crashworthiness Enhanced Injury Doctrine: "Wanted Dead Or . . .", Larry M. Roth

Barry Law Review

No abstract provided.

Free Agents: Should Crowdsourcing Lead To Agency Liability For Firms?, Erin R. Frankrone

Vanderbilt Journal of Entertainment & Technology Law

Crowdsourcing has emerged as a new production paradigm through which firms outsource traditional employee tasks to an undefined and generally large network of people, the "crowd," in the form of an open call. The relationships between the crowd and the firm vary across different crowdsourcing models and do not represent, either in fact or in theory, the employment or contractor relationships with which the law is familiar. Therefore, the law and the courts are ill-equipped to answer the questions of whether and how liability should attach to firms for the crowd's harmful conduct toward third parties. Agency law is the …

Section 7433'S Statute Of Limitations: How Courts Have Wrongly Turned A Taxpayer's Exclusive Sword Into The Irs's Shield Against Damages, Diana Leyden

Faculty Articles and Papers

Over twenty years ago, Congress took the extraordinary step of authorizing taxpayers to sue the Internal Revenue Service (“IRS”) for damages if the IRS engaged in “unauthorized collection action” when trying to collect a federal tax debt. For many years the IRS has generally been immune from any private action by three laws. Thus, fashioning a private cause of action against the IRS for damages was an extraordinary act. Congress expressly authorized taxpayers to bring a private cause of action against the United States for economic damages caused by “unauthorized collection.” Codified as section 7433 of the Internal Revenue Code, …

When Are Damages Tax Free?: The Elusive Meaning Of “Physical Injury”, Ronald H. Jensen

Elisabeth Haub School of Law Faculty Publications

Part I of this article traces the evolution in the tax treatment of litigation damages from 1918 through the enactment of the 1996 Amendments and reviews the various rationales that have been offered for such treatment. In Part II, I set forth a number of hypothetical cases illustrating some of the issues created by the 1996 Amendments. In Parts III through Part VI, I set forth my analyses of these issues. Finally, In Part VII, I critique the 1996 Amendments and make a proposal that would eliminate much of the uncertainty and inequity that the 1996 Amendments created while satisfying …

Which Interests Should Tort Protect?, Jean Thomas

Buffalo Law Review

No abstract provided.

When Certainty Dissolves Into Probability: A Legal Vision Of Toxic Causation For The Post-Genomic Era, Steve C. Gold

Washington and Lee Law Review

Proof of causation in toxic torts has presented persistent problems for the legal system, because the probabilities that science can know fit poorly with the demands for particularistic proof imposed by the law’s deterministic model of causation. Some scholars have hoped that genomic and molecular information will at last provide scientific certainty—definitive, individualized proof of toxic causation. This Article argues that the opposite is true. Scientific research will increasingly elucidate the ways in which environmental exposures and human genes interact to produce disease, but this deeper knowledge will extend rather than resolve the problem of causal indeterminacy in toxic torts. …

Showing On-Field Racism The Red Card: How The Use Of Tort Law And Vicarious Liability Can Save The Mls From Joining The English Premier League On Racism Row, Joseph B. Kenney

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The 9/11 Litigation Database: A Recipe For Judicial Management, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

Late-Night Law Firms, Scott Hershovitz

Reviews

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are …

Review Of Corrective Justice, By E. Weinrib, Scott Hershovitz

Reviews

I once heard it said of a famous philosopher of law that he never allowed his philosophy to be polluted by law. No one will ever say that about Ernie Weinrib. His latest book - Corrective Justice - is exceptional precisely because Weinrib is deeply informed about legal doctrine. Of course, he also has formidable philosophical skill, and in bringing that to bear on doctrine, he dismantles any thought that corrective justice is too abstract a concept to shed light on the practical problems that courts face. Along the way, he also demol­ ishes the instrumentalism that has recently dominated …

The Death Of The Common Law: Judicial Abdication And Contributory Negligence In Maryland, Donald G. Gifford

Maryland Law Review Online

The issue of how to handle a victim’s own contributory negligence that combines with the negligence of a tortfeasor in causing harm is one of the most important, if not the most important, issue in all of tort law. Forty-six states now apply some version of comparative fault that holds the defendant liable for its negligence even when the plaintiff is also careless, but reduces the award in proportion to the plaintiff’s degree of fault when compared with that of the defendant. In contrast, the Maryland Court of Appeals in Coleman v. Soccer Association of Columbia recently refused again to …

Oh Lord Won't You Buy Me A Mercedes Benz: A Comparison Of State Wrongful Conviction Compensation Statutes., Donna Mckneelen

The Scholar: St. Mary's Law Review on Race and Social Justice

All states should pass compensation statutes that provide financial assistance to exonerees. Following wrongful incarceration, exonerees may suffer from post-traumatic stress and may need assistance readjusting to everyday life. Many exonerees may be be ineligible for social benefits and may lack a support system. The exoneree may be alienated because family and friends may still believe that the exoneree actually committed the crime. Furthermore, exonerees may struggle to obtain employment because they lack the current educational and job training skills required for most jobs. Additionally, exonerees may have pre-existing health problems that were exacerbated while incarcerated. An exoneree’s health problems …