Law Commons^™

Cases And Materials On The Law Of Torts, 4th Edition, Harry Shulman, Fleming James, Oscar Gray, Donald Gifford

Oscar S. Gray

The opinions included in this law school casebook are designed for teaching case analysis and the social and economics consequences of legal decisions. Enough of the majority, and often the dissent opinion is presented to illustrate how the case fits with precedents and allows students to evaluate the arguments on either side of the case. It emphasizes accidents and the role of fault in society's management of their costs, and the historical basis for modern torts doctrines. It details intentional torts and a wide range of other non-accident wrongs.

The Prosser Notebook: Classroom As Biography And Intellectual History, Christopher Robinette

Christopher J Robinette

Tort Law And Probabilistic Litigation: How To Apply Multipliers To Address The Problem Of Negative Value Suits, Ben Depoorter

Ben Depoorter

This Article advances a proposal that brings to life valuable lawsuits that litigation costs currently discourage. Our proposal converts claims with negative expected values into positive expected value claims by implementing a novel system involving flexible conditional multipliers. Our proposal has two components. First, under the proposed system a plaintiff is allowed to select a damage multiplier that determines the amount of damages the plaintiff will receive if the litigation is successful. Second, courts select cases for litigation randomly with a probability inverse to the multiplier the plaintiff selected.

Tort Law's Flaws, Jeffrey O'Connell, Christopher Robinette

Christopher J Robinette

The Mature Product Preemption Doctrine: The Unitary Standard And The Paradox Of Consumer Protection, Jean M. Eggen

Jean M. Eggen

The history of the U.S. Supreme Court's product preemption doctrine has been characterized by inconsistency and confusion. Product regulation and common-law product liability actions are primarily concerned with assuring the health and safety of the consuming public, and it is not surprising that the Court's product preemption decisions have focused substantially on medical devices and drugs. Recent government studies have shown, however, that the FDA is hampered in reaching its safety goals by insufficient resources and increasing demands. This article reassesses the Court's product preemption doctrine in the light of a triad of new decisions issued in 2008 and 2009. …

A Recipe For Balanced Tort Reform: Early Offers With Swift Settlements, Christopher Robinette, Jeffrey O’Connell

Christopher J Robinette

Shared Sovereign Immunity As An Alternative To Federal Preemption: An Essay On The Attribution Of Responsibility For Harm To Others, Martin A. Kotler

Martin A. Kotler

Peace: A Public Purpose For Punitive Damages?, Symposium: Punitive Damages, Due Process, And Deterrence: The Debate After Philip Morris V. Williams, Christopher J. Robinette

Christopher J Robinette

Introduction, Crimtorts Symposium, Christopher J. Robinette

Christopher J Robinette

Torts Rationales, Pluralism, And Isaiah Berlin, Christopher J. Robinette

Christopher J Robinette

The Myth Of Individualism And The Appeal Of Tort Reform, Martin A. Kotler

Martin A. Kotler

This Article examines the relationship between the American political culture of individualism and long-standing, well-established tort doctrine. Although much of the doctrine in the abstract is obviously reflective of the prevailing political culture, there remains a certain ambivalence. Thus, when judges and jurors are faced with deciding concrete cases before them, they frequently abandon their professed commitment to mythological notions of self-sufficiency and personal responsibility and find the injured plaintiff to be entitled to compensation.

The modern American tort reform movement’s recognition of this ambivalence underlies the essential strategy for reform. The reformers’ goals are more far reaching than the …

The Normalization Of Product Preemption Doctrine, Jean M. Eggen

Jean M. Eggen

When the United States Supreme Court decided Geier v. American Honda Motor Company in 2000, much speculation ensued as to whether the Court was establishing a new set of preemption rules for product liability cases, in which implied preemption could be used to bar most of plaintiffs' claims, even where the relevant federal statute's express preemption provision did not do so. Most commentators declared the doctrine of preemption in a hopeless state of disarray following Geier. This article argues that the 2005 Supreme Court decision in Bates v. Dow Agrosciences LLC demonstrated a consistency with the earlier Court decisions in …

Products Liability And Basic Tort Law, Martin Kotler

Martin A. Kotler

No abstract provided.

The Torts Game: Defending Mean Joe Greene, Jonathan Zittrain, Jennifer Harrison

Jonathan Zittrain

No abstract provided.

Can There Be A Unified Theory Of Torts? A Pluralist Suggestion From History And Doctrine, Christopher J. Robinette

Christopher J Robinette

Tort, Compensation, And Two Kinds Of Justice, John G. Culhane

John G. Culhane

Following the horrific terrorist attacks of September 11, 2001, Congress moved swiftly to pass legislation that both protected potential tort defendants against crushing liability and created a fund to compensate those killed or injured by the terrorists. Although the Victim Compensation Fund does not provide the full recovery that a plaintiff might gain through a tort suit, it nonetheless reflects a tort law bent by allowing recovery of full economic loss.

This Article argues that the Fund confuses two kinds of justice. Corrective justice (herein, tort law) is concerned with repairing an inequality between parties that wrongful conduct has created. …

Shedding Light On The Preemption Doctrine In Product Liability Actions: Defining The Scope Of Buckman And Sprietsma, Jean M. Eggen

Jean M. Eggen

No abstract provided.

Gun Torts: Defining A Cause Of Action For Victims In Suits Against Gun Manufacturers, John G. Culhane, Jean M. Eggen

Jean M. Eggen

Although tens of thousands of Americans die from gun violence every year, the regulation of firearms remains inadequate. Those who are injured, or the survivors of those killed by guns, therefore have sought relief through tort law against those who manufacture these uniquely deadly products. With rare exceptions, however, these suits have been unsuccessful. Most courts have found that the conduct of gun manufacturers is not actionable under strict product liability doctrine, negligence, or the law of abnormally dangerous activities. This Article argues that courts have been too reluctant to apply tort liability to gun manufacturers. It is possible and …

Defining A Proper Role For Public Nuisance Law In Municipal Suits Against Gun Sellers: Beyond Rhetoric And Expedience, John G. Culhane, Jean M. Eggen

Jean M. Eggen

During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public …

Defining A Proper Role For Public Nuisance Law In Municipal Suits Against Gun Sellers: Beyond Rhetoric And Expedience, John G. Culhane, Jean M. Eggen

John G. Culhane

During the past few years, more than a score of municipalities (and the State of New York) have brought suit against gun manufacturers, distributors and retailers, seeking to hold them accountable for the consequences of gun violence within the municipalities' jurisdiction. This article critically assesses whether the theory of public nuisance is an appropriate vehicle for bringing such suits. Inasmuch as public nuisance theory is itself only dimly understood, the article begins with an historical summary of public nuisance law. It then considers contemporary objections to the continued vitality of public nuisance, and concludes that, properly defined and limited, public …

Social Norms And Judicial Rulemaking: Commitment To Political Process And The Basis Of Tort Law, Martin A. Kotler

Martin A. Kotler

This Article looks at the respective roles of judges and juries in common law civil litigation and considers the legitimacy of both in light of our essential commitment to majoritarian politics. It concludes that the legitimacy of judicial rulemaking is highly suspect and can be justified when necessary to protect the political process by policing fraud and under a few other narrow sets of circumstances. Jury decision-making, on the other hand, is by far more defensible representing, as it does, a form of direct participatory democracy.

Thus, although the tort reform debate often focuses on the conflict between legislative bodies …

Tardive Dyskinesia: Tremors In Law And Medicine, Thomas Reed

Thomas J Reed

No abstract provided.

Reconceptualizing Strict Liability In Tort: An Overview, Martin A. Kotler

Martin A. Kotler

Commonly, strict liability in tort is understood as doctrine that serves to impose liability based on the fact that the defendant caused the plaintiff’s harm, regardless of the culpability of the defendant’s conduct. This Article takes issue with that view and seeks to reconceptualize strict liability as doctrine which, like negligence, assesses the culpability of the defendant’s conduct. Negligence, however, judges the defendant’s conduct by comparing it the norms of behavior of the social group of which the defendant is a member. In contrast, strict liability assesses the defendant’s conduct by comparing it to the norms of behavior of that …

Competing Conceptions Of Autonomy: A Reappraisal Of The Basis Of Tort Law, Martin A. Kotler

Martin A. Kotler

Seeking to identify and describe the essential values underlying tort law, this Article attempts to demonstrate that tort law is a system that simultaneously seeks to promote both efficiency and individual autonomy. It argues, however, that efficiency is a secondary goal of tort law that comes to the fore when it is inexpedient, impossible or unnecessary to promote the primary value of autonomy.

The primacy of autonomy, however, is often obscured by the fact that our conception of autonomy has evolved over the years. Once understood in terms of an individual’s rights in private property, autonomy is now widely perceived …

Fashioning Procedural And Substantive Due Process Arguments In Toxic And Other Tort Actions Involving Punitive Damages After Pacific Mutual Life Insurance Co. V. Haslip, James R. May

James R. May

This article predicted that one of the most important issues in future tort litigation would be the role of the Due Process Clause of the Fourteenth Amendment in constraining the imposition of punitive damages by state court juries. In Pacific Mutual Life Insurance Co. v. Haslip, the Supreme Court found that the Due Process Clause of the Fourteenth Amendment limits, but does not prohibit, the imposition of punitive damages. The article argues that procedural due process would be protected by giving the jury adequate guidance on the nature and purpose of punitive damages, by using post-verdict judicial review to assure …

Motivation And Tort Law: Acting For Economic Gain As A Suspect Motive, Martin A. Kotler

Martin A. Kotler

Traditionally, tort scholars had claimed that the motives underlying a tortfeasor’s decision to act were largely irrelevant. This Article challenges that view by showing the recurring importance of motive. Specifically, whether the actor is perceived to have been motivated by a desire for personal economic gain or, conversely, motivated by altruism correlates closely with the development of tort doctrine imposing liability on the former and immunizing the latter.

The observation that the economically motivated actor has been disfavored historically contradicts much of the descriptive and normative law and economics literature which argued that wealth maximizing behavior was and should be …

Imposing Punitive Damage Liability On The Intoxicated Driver, Martin Kotler

Martin A. Kotler

This Article explores the traditional justification for the imposition of punitive damage liability in the context of drunk driving. Though courts have increasingly found such damages to be available in the appropriate case, neither the deterrence nor punishment rationales can be justified in the absence of widespread public awareness that specific conduct has the potential to result in liability. Criminal sanction, therefore, better serves to accomplish the intended purposes.