Law Commons^™

Mass Torts And Due Process, Sergio J. Campos

Vanderbilt Law Review

As the old saying goes, hard cases make bad law. But hard cases also reveal the limits of legal doctrine. In this Article, I turn to a class of hard cases--mass torts--to rethink the law of procedural due process under the Due Process Clause. Mass torts have long perplexed courts and scholars. They include torts caused by asbestos and other toxic chemicals, pharmaceuticals, oil spills, and other mass-produced products and services. The plaintiffs not only suffer significant injuries, but the sheer number of plaintiffs, each with claims that raise unique fact and legal issues, stretch judicial resources to the limit. …

Mold Is Gold: But, Will It Be The Next Asbestos?, Thelma Jarman-Felstiner

Pepperdine Law Review

No abstract provided.

"Indifferent [Towards] Indifference:" Post-Deshaney Accountability For Social Services Agencies When A Child Is Injured Or Killed Under Their Protective Watch, Carolina D. Watts

Pepperdine Law Review

No abstract provided.

Absolute Immunity From Civil Liability: Lessons For Litigation Lawyers, T. Leigh Anenson

Pepperdine Law Review

The common law doctrine of absolute immunity provided to litigation lawyers is said to be "as old as law." This centuries-old doctrine protects litigators from lawsuits instigated by the adversaries of their clients. It is typically invoked, irrespective of any nefarious or malicious motives, so long as the course of action taken bears some reasonable relation to the lawsuit. This Article examines the historical antecedents of the litigation privilege as well as the policies motivating its creation. It also provides a comprehensive description of the doctrine of absolute immunity, explores the circumstances in which it has been applied, and discusses …

State Limits: Can One State Rule The Country? One State Awarding Punitive Damages For Nationwide Conduct, Heather Burgess

Pepperdine Law Review

No abstract provided.

Addressing The "Elephantine Mass" Of Asbestos Cases: Consolidation Versus Inactive Dockets (Pleural Registries) And Case Management Plans That Defer Claims Filed By The Non-Sick, Victor E. Schwartz, Mark A, Behrens, Rochelle M. Tedesco

Pepperdine Law Review

No abstract provided.

Merging Roles: Mass Tort Lawyers As Agents And Trustees, Charles Silver

Pepperdine Law Review

No abstract provided.

The Cumulative Sources Of The Asbestos Litigation Phenomenon, George L. Priest

Pepperdine Law Review

No abstract provided.

Asbestos Litigation And Bankruptcy: A Case Study For Ad Hoc Public Policy Limitations On Joint And Several Liability, Richard L. Cupp Jr

Pepperdine Law Review

Over a decade ago, the Federal Judicial Conference warned of an asbestos litigation “disaster of major proportions.” The Supreme Court of the United States has described the litigation as a “crisis.” According the RAND Institute for Civil Justice, by the end of 2000, more than 600,000 asbestos claims were filed. RAND estimates that as many as three million more plaintiffs may eventually file claims. Most new claimants are not sick. The flood of claims has forced almost sixty companies into bankruptcy; many of these bankruptcies are very recent. As a result, defendants with only remote connections to asbestos – known …

Legislative Attempts To Address Asbestos Litigation, Steven Kazan

Pepperdine Law Review

No abstract provided.

Asbestos Legislation Ii: Section 524(G) Without Bankruptcy, Francis E. Mcgovern

Pepperdine Law Review

No abstract provided.

Lawyer Ethics On The Lunar Landscape Of Asbestos Litigation, Roger C. Cramton

Pepperdine Law Review

No abstract provided.

Judicial Efficiency In Asbestos Litigation, Alfred Chiantelli

Pepperdine Law Review

No abstract provided.

On The Theory Class's Theories Of Asbestos Litigation: The Disconnect Between Scholarship And Reality?, Lester Brickman

Pepperdine Law Review

More than 100,000 new asbestos claims were filed in 2003, the most ever in one year. Asbestos litigation thus continues to thrive even though 80-90% of claimants have no illness recognized by medical science, let alone suffer any lung impairment. To explain how this disconnect between medical science and tort litigation has come about, I cover the following subjects: 1) medical consequences of exposure to asbestos-containing materials; 2) the phenomenon of the unimpaired claimant; 3) medical evidence with regard to the incidence of asbestosis; 4) the effect on asbestos litigation of the failure of the Manville Trust audit to be …

Alternatives To Asbestos Impairment Standards, Alan Brayton

Pepperdine Law Review

No abstract provided.

Keeping Junk Science Out Of Asbestos Litigation, David E. Bernstein

Pepperdine Law Review

No abstract provided.

Asbestos & The Sleeping Constitution, Griffin B. Bell

Pepperdine Law Review

No abstract provided.

Multiple Facets Of Damage Caused By Exposure To Low-Dose Radiation And The Legal Remedy, Yi-Chen Su, Peter W.S. Chang

Buffalo Environmental Law Journal

In addition to the toll in human life, there are at least three facets of damage caused by the protracted exposure to low-dose radiation: bodily injury, mental anguish, and property injury. After examining cases and compensation schemes in the United States and Taiwan, this article concludes that both the Taiwanese administrative compensation scheme and U.S. federal courts' interpretation of the Price-Anderson Act favor finding injury to the claimants' property, but not adverse effects to their health. To redress the injustice caused by the systemic bias, this article argues that the tort system should be adapted to tolerate gray area, such …

Tort Law—Tortious Interference With Business Expectancy – A Trap For The Wary And Unwary Alike, Larry Watkins

University of Arkansas at Little Rock Law Review

Despite remaining stable and unchanged over the last decade, tortious interference has also remained problematic in Arkansas. Although tortious interference with contract in Arkansas suffers from many ailments, this note focuses on interference with business expectancy, discussing interference with contract only as necessary. Specifically, the note argues that tortious interference in Arkansas should be formally separated into two distinct rules—interference with contract and interference with business expectancy—in order to keep courts from mixing terms and standards from both rules when addressing only one cause of action. This note further proposes that the improper element of tortious interference in Arkansas should …

Post-Mortem Right Of Publicity In Arkansas: Protecting Against The Unauthorized Use Of A Person’S Identity For Commercial Purposes, Rashauna A. Norment

University of Arkansas at Little Rock Law Review

The right of publicity protects a person against the use of his or her name, identity, likeness, or other personal characteristics for commercial purposes without consent. Many states have implemented a statutory right of publicity or have recognized the right under common law. Currently, only three states have a post-mortem right of publicity. This article discusses jurisdictions that have adopted a postmortem right of publicity, and advocates that Arkansas adopt a postmortem right of publicity for everyone.

Specifically, the article argues that traditional protection stemming from actions for invasion of a right of privacy, trademark infringement, and copyright infringement cannot …

Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendment, Nat Stern

Scholarly Publications

No abstract provided.

Medical Apology Programs & The Unauthorized Practice Of Law, Gabriel H. Teninbaum

Suffolk University Law School Faculty Works

This Essay was created to accompany a presentation at the New England Law Review/American Health Lawyers Association symposium “On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform.” In the last decade, many American medical facilities have instituted medical apology programs. These programs call on doctors who have committed an error to meet with their injured patient, explain what happened and, typically, apologize. Some programs have also adopted policies to accompany these communications with offers of compensation. As part of this process, doctors are typically accompanied to meetings by risk managers who represent the interests of the …

The Bloody Truth: Examining America's Blood Industry And Its Tort Liability Through The Arkansas Prison Plasma Scandal, Sophia Chase

William & Mary Business Law Review

Most of the time, blood transfusions are safe. Over the years, however, tragedies connected to tainted blood and blood products have ripped through communities on an international scale. Blood contaminated with hepatitis C, HIV, and hepatitis B has sickened and killed recipients, causing financial, political, and legal repercussions for those found responsible.

This Note seeks to explore one such tragedy: the Arkansas Prison Plasma Scandal. Occurring between 1982 and 1994 at the Cummins Prison in Grady, Arkansas, the scandal stemmed from the operation of a blood product center in which prisoners “bled” in exchange for $7 to $10 per donation. …

Does Product Liability Make Us Safer?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Product liability law is intended to create an environment that fosters safer products. However, this law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. This paper examines both types of problems and summarizes relevant academic literature.

Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael Wells

Scholarly Works

In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only …

Unblocked Future: Why Gene Patents Won't Hinder Whole Genome Sequencing And Personalized Medicine, W. Nicholson Price Ii

Cardozo Law Review

Whole-genome sequencing has been hailed as the crucial next step in personalized medicine. It has also been described as likely violating hundreds - if not thousands - of pre-existing patents on individual genes. These claims of patent infringement, however, are usually made without detailed analysis. Instead of stating that infringement definitely occurs, or in what circumstances it occurs, the discussion of whole-genome sequencing mentions that some claims may be typically infringed, but some may be invalid, and leaves the matter there. This Article seeks to provide a detailed analysis of the ways that whole-genome sequencing may infringe extant gene patents, …

Is Silica The Next Asbestos? An Analysis Of Silica Litigation And The Sudden Resurgence Of Silica Lawsuit Filings, Melissa Shapiro

Pepperdine Law Review

No abstract provided.

A Rejoinder To The Rejoinder To On The Theory Class's Theories Of Asbestos Litigation, Lester Brickman

Pepperdine Law Review

This short essay is a partial response to an essay by Professor Charles Silver contesting assertions I set forth in an article titled, "On The Theory Class's Theories of Asbestos Litigation: The Disconnect Between Scholarship and Reality", 31 Pepp. L. Rev. 33 (2003-04), in which I responded to several personal attacks against me by Professor Silver. Since Professor Silver was permitted to substantially add to his essay after I submitted my Rejoinder and I was not provided with these extensive additions, my response is necessarily incomplete. Professor Silver's essay is titled, "A Rejoinder to Lester Brickman", 32 Pepp. L. Rev. …

A Rejoinder To Lester Brickman: On The Theory Class's Theories Of Asbestos Litigation, Charles Silver

Pepperdine Law Review

No abstract provided.

Bareboat Charters: Can A Shipowner Limit Liability To Third Parties? Answers For Owners Attempting To Navigate The Unsettled Waters In The Eleventh Circuit, John W. Chitty

Georgia State University Law Review

A bareboat charter is a contractual agreement akin to the lease of a vessel whereby most of the “customary liabilities” of the owner are shifted to the charterer. Some courts have raised concerns over bareboat charters—also referred to as a demise charter—regarding the ability of owners to use the bareboat device as a means to limit liability to injured third parties.

In Baker v. Raymond International, Inc. the Fifth Circuit brought force to this concern; the court held a bareboat charter would no longer shield owners from personal liability for third party injuries caused by the unseaworthiness of a vessel, …