Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Torts (12)
- Health Law and Policy (3)
- Law and Society (3)
- Litigation (3)
- Civil Rights and Discrimination (2)
-
- Communications Law (2)
- Comparative and Foreign Law (2)
- Family Law (2)
- Medical Jurisprudence (2)
- Civil Procedure (1)
- Constitutional Law (1)
- Consumer Protection Law (1)
- Contracts (1)
- Courts (1)
- Dispute Resolution and Arbitration (1)
- Evidence (1)
- First Amendment (1)
- Human Rights Law (1)
- Jurisdiction (1)
- Juvenile Law (1)
- Law and Politics (1)
- Law and Psychology (1)
- Legal Ethics and Professional Responsibility (1)
- Legal History (1)
- Legal Remedies (1)
- Military, War, and Peace (1)
- State and Local Government Law (1)
- Publication Year
- Publication
-
- Peter Zablotsky (5)
- Katharine Van Tassel (3)
- Bruce L. Beverly (2)
- Gregory C. Keating (2)
- Dan Priel (1)
-
- Daniel H. Erskine (1)
- Denis Binder (1)
- Eileen Kaufman (1)
- Eric A. Engle (1)
- Fernanda G. Nicola (1)
- Jay Tidmarsh (1)
- Jeffrey A. Pojanowski (1)
- Lisa R Pruitt (1)
- Lyrissa Barnett Lidsky (1)
- Martha M. Ertman (1)
- Mauro Bussani (1)
- Michael Heise (1)
- Richard J. Peltz-Steele (1)
- Stephen D Sugarman (1)
- Tom W. Bell (1)
Articles 1 - 28 of 28
Full-Text Articles in Law
Modernizing The Emergency Medical Treatment And Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel
Modernizing The Emergency Medical Treatment And Labor Act To Harmonize With The Affordable Care Act To Improve Equality, Quality And Cost Of Emergency Care, Katharine A. Van Tassel
Katharine Van Tassel
This Article will propose a very simple, two-step way to modernize EMTALA [Emergency Medical Treatment and Active Labor Act (1986)] to deal with this cascade of problems. This solution converts EMTALA into a powerful tool to enhance equal access to healthcare while at the same time changing EMTALA so that it works in tandem with, instead of against, the efforts of the Affordable Care Act, Medicare and Medicaid to improve healthcare quality, cost and equal access.
This solution also works across systems to resolve the conflict between the tort, licensure and hospital peer review systems that all discourage evidence-based treatment …
Harmonizing The Affordable Care Act With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure, And Hospital Peer Review Hearing Systems, Katharine Van Tassel
Harmonizing The Affordable Care Act With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure, And Hospital Peer Review Hearing Systems, Katharine Van Tassel
Katharine Van Tassel
.. [W]hile the ACA [Affordable Care Act] has at least some provisions addressing the need to make changes in the medical malpractice and licensure systems to encourage the use of evidence-based standards of care, the ACA completely ignores the hospital peer review system. This article makes specific suggestions for how to revise all three major systems [the tort, licensure, and hospital peer review] so that they can work in tandem with federal law to encourage physicians to adopt [an] evidence-based model of medical practice in order to improve healthcare quality, cost, and access. This article starts by explaining the difference …
Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel
Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel
Katharine Van Tassel
This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …
British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel
British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel
Dan Priel
There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. …
The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells
The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells
Michael Heise
Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were …
Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly
Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly
Bruce L. Beverly
As the second of a series, this paper attempts to further explore the phenomenon of parental alienation in domestic relations cases by exploring the often frustrating position that many courts take with regard to blatant and obvious violations of the fundamental rights of parents to raise and know their children. Ofttimes, where courts have found the most blatant interference and harmful manipulation by one parent of the other parent's formerly close relationship with a child, the court either forces a detrimentally aligned child into the custody of the wrongfully vilified parent, thereby harming possible the child and that injured parent, …
Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky
Prying, Spying, And Lying: Intrusive Newsgathering And What The Law Should Do About It, Lyrissa Barnett Lidsky
Lyrissa Barnett Lidsky
The media's use of intrusive newsgathering techniques poses an increasing threat to individual privacy. Courts currently resolve the overwhelming majority of conflicts in favor of the media. This is not because the First Amendment bars the imposition of tort liability on the media for its newsgathering practices. It does not. Rather, tort law has failed to seize the opportunity to create meaninful privacy protection. After surveying the economic, philosophical, and practical obstacles to reform, this Article proposes to rejuvenate the tort of intrusion to tip the balance between privacy and the press back in privacy's direction. Working within the framework …
Spousal Emotional Abuse As A Tort? , Ira Mark Ellman, Stephen D. Sugarman
Spousal Emotional Abuse As A Tort? , Ira Mark Ellman, Stephen D. Sugarman
Stephen D Sugarman
No abstract provided.
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Jeffrey A. Pojanowski
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Tort Law: The Languages Of Duty, Jay Tidmarsh
Fifteen Minutes Of Infamy: Privileged Reporting And The Problem Of Perpetual Reputational Harm, Richard J. Peltz-Steele
Fifteen Minutes Of Infamy: Privileged Reporting And The Problem Of Perpetual Reputational Harm, Richard J. Peltz-Steele
Richard J. Peltz-Steele
This Article provides an overview of the labyrinth of media tort defenses, specifically the four privileges – fair comment, fair report, neutral reportage, and wire service – that come into play when the media republish defamatory content about criminal suspects and defendants without specific intent to injure. The Article then discusses these privileges in light of a hypothetical case involving a highly publicized crime and an indicted suspect, against whom charges are later dropped, but who suffers perpetual reputational harm from the out-of-context republication online of news related to his indictment. The Article demonstrates how the four privileges would operate …
Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky
Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky
Peter Zablotsky
Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.
Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives Of Interspousal Torts, Fernanda Nicola
Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives Of Interspousal Torts, Fernanda Nicola
Fernanda G. Nicola
Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …
A Remedy To Fit The Crime: A Call For The Unreasonable Rejection Of A Parent By A Child As Tort, Bruce L. Beverly
A Remedy To Fit The Crime: A Call For The Unreasonable Rejection Of A Parent By A Child As Tort, Bruce L. Beverly
Bruce L. Beverly
The U.S. Supreme Court has stated time and again that the privilege to raise a child as a parent sees fit is a substantive fundamental right under the Constitution. However, when faced with the situation where one parent poisons the child against the other parent, and that child then unreasonably rejects a formerly loved parent, Courts have been reluctant to enforce this fundamental right by allowing tortious recovery against the offending parent. This paper briefly examines the legal and mental health controversies surrounding parental alienation and suggests that more Courts should recognize an independent tort cause of action against an …
The Priority Of Respect Over Repair, Gregory C. Keating
The Priority Of Respect Over Repair, Gregory C. Keating
Gregory C. Keating
Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability …
Tort, Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory C. Keating
Tort, Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory C. Keating
Gregory C. Keating
No abstract provided.
Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky
Eliminating Proximate Cause As An Element Of The Prima Facie Case From Strict Products Liability, Peter Zablotsky
Peter Zablotsky
No abstract provided.
From A Whimper To A Bang: The Trend Toward Finding Occurrence Based Statutes Of Limitations Governing Negligent Misdiagnosis Of Diseases With Long Latency Periods Unconstitutional, Peter Zablotsky
Peter Zablotsky
No abstract provided.
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Peter Zablotsky
No abstract provided.
The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky
The Appropriate Role Of Plaintiff Misuse In Products Liability Causes Of Action, Peter Zablotsky
Peter Zablotsky
No abstract provided.
Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman
Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman
Eileen Kaufman
No abstract provided.
Graduated Consent In Contract And Tort Law: Toward A Theory Of Justification, Tom Bell
Graduated Consent In Contract And Tort Law: Toward A Theory Of Justification, Tom Bell
Tom W. Bell
We often speak of consent in binary terms, boiling it down to 'yes' or 'no.' In truth, however, consent varies by degrees. We tend to afford expressly consensual transactions more respect than transactions backed by only implied consent, for instance, which we in turn regard as more meaningful than transactions justified by merely hypothetical consent. A mirror of that ordinal ranking appears in our judgments about unconsensual transactions, too. Those gradations of consent mark a deep structure of our social world, one especially evident in the contours of contract and tort law. This article draws on those and other sources …
The Next Threshold In Medical Monitoring, Denis Binder
The Next Threshold In Medical Monitoring, Denis Binder
Denis Binder
Tobacco litigation has been with us for 6 ½ decades. The related field of Toxic Torts is 3 decades old. Both have common and overlapping issues of causation, damages, discovery, and theories of relief, but with the exception of a few cases involving asbestos and tobacco, they have generally existed in parallel legal universes. A recent Massachusetts opinion, Donovan v. Philip Morris USA, Inc. has finally woven them together in a novel case applying the Toxic Torts remedy of medical monitoring for sub-clinical injuries in a tobacco case.
The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman
The Productive Tension Between Official And Unofficial Stories Of Fault In Contract Law, Martha M. Ertman
Martha M. Ertman
Officially Contract law ignores fault. However, an unofficial story complements the official one, and explains why fault occasionally slips into contract law through doctrines such as willful breach. This chapter of FAULT IN AMERICAN CONTRACT LAW (Omri Ben-Shahar & Ariel Porot, eds, Cambridge U. Press, forthcoming 2010) argues that the official and unofficial stories operate in productive tension to both facilitate ex ante planning and, when necessary, look backward at reasons for breach to reach a just result. The occasional presence of fault in contract law, in this view, represents merely one more instance of the common doctrinal pattern of …
Rural Rhetoric, Lisa Pruitt
Rural Rhetoric, Lisa Pruitt
Lisa R Pruitt
This Article investigates law’s constitutive rhetoric about rural people, places, and livelihoods. Specifically, it considers five categories of judicial opinions that discuss the legal relevance of rurality: judicial self-identification as rural; definitions of rural; line-drawing between rural and urban; taking judicial notice of rural characteristics; and idealized portrayals of the rural. Viewed together, these clusters of opinions reveal a comprehensive – if not entirely coherent – judicial portrait of rurality. They also provide an overview of the many instances when a rural setting is relevant to a legal outcome. Implicated are issues of tort, property, criminal, and constitutional law, among …
La Corte Costituzionale, L’Illecito Ed Il Governo Della Colpa, Mauro Bussani, Marta Infantino
La Corte Costituzionale, L’Illecito Ed Il Governo Della Colpa, Mauro Bussani, Marta Infantino
Mauro Bussani
Under Italian law, the (only) court competent to solve constitutional questions – the Constitutional Court – is often required to verify the constitutionality of tort law rules. Focusing on the Constitutional Court’s pronouncements about the notion of fault in tort liability, the paper aims to investigate how the Court performs its role in a field where judicial review is seldom aimed to the scant legislative tort law rules, and most of the times targets the way in which ordinary courts, including the Court of Cassation (i.e. the Supreme Court in civil matters), apply tort law rules, and set the fault …
Alien Torts In Europe? Human Rights And Tort In European Law, Eric A. Engle
Alien Torts In Europe? Human Rights And Tort In European Law, Eric A. Engle
Eric A. Engle
Human rights are universally recognized. Their enforcement, however, often requires the action of particular states. This paper examines private law remedies in tort in several Member states of the European Union to remedy human rights violations occurring outside the European Union. It concludes that the laws examined are examples of universal jurisdiction and rights and duties of private persons under international law, which are two key elements of the post-Westphalian state system.
Satellite Digital Audio Radio Searching For Novel Theories Of Action, Daniel H. Erskine
Satellite Digital Audio Radio Searching For Novel Theories Of Action, Daniel H. Erskine
Daniel H. Erskine
Satellite radio may be becoming increasingly popular, but there is a little known drawback to the technology: it interferes with many existing wireless networks in place, such as cellular telephone service. This article looks at the legal implications that this interference causes and what kind of liability satellite operators like Sirius and XM Radio may face. Erskine includes a detailed description of how satellite radio operates and in turn describes how this operation causes the disruption. He then moves into a discussion of the current law surrounding the technology and different theories of liability, including tort theories. His approach is …