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Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel
Not So Peaceful Coexistence: Inherent Tensions In Addressing Tort Law Reform, Jeffrey W. Stempel
Scholarly Works
As Professor Michael Green's comments trenchantly remind us, all of this has a familiar ring: insurers and tort defendants claim unfairly escalating liability, plaintiffs' lawyers and consumer groups counterattack, and (for the most part), insurers and defendants obtain some of the relief they seek. The tort reform victories are not so overwhelming as to completely unravel the historical rights of victims or the power of courts generally, but some constriction of rights inevitably occurs. During periods of quiescence, plaintiffs and consumers take back some lost territory through common law victories expanding claimant rights, or through specific legislation. Statutes that permitted …
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Law Faculty Scholarly Articles
One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
On Preemption, Congressional Intent, And Conflict Of Laws, Mary J. Davis
Law Faculty Scholarly Articles
Conflicts scholars and jurists for centuries have sought an answer to the question of "what law controls?" by balancing a number of considerations. Chief among those considerations are the legitimate political and policy concerns of conflicting sovereigns. This article analyzes the Supreme Court's recent preemption decisions with an understanding of these theories and their underlying considerations. That analysis reveals that the Court's recent preemption decisions incorporate two modem conflict of laws theories: Governmental Interest Analysis and its corollary, Comparative Impairment. Each of these theories builds on the notion that a choice of law analysis should be motivated by selecting the …