Law Commons^™

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew Popper

Andrew Popper

Abstract: Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields. This paper postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe …

Three Milestones In The History Of Privacy In The United States, Vernon Valentine Palmer

Vernon Palmer

Over the course of more than 120 years the right of privacy has somehow acquired, absorbed and incorporated various tangential interests such as the right to control use of one’s name, one’s image, one’s writings, one’s life story, and even the right to exploit one’s own publicity value. Obviously those who seek to capitalize upon the publicity value of their name or talent are not in fact seeking privacy in the usual sense of the word, and yet American tort law protects the publicity right either in the name of privacy or describes it as a related offshoot. Somewhat more …

Strategic Enforcement, Alex Stein, Margaret H. Lemos

Alex Stein

Doctrine and scholarship recognize two basic models of enforcing the law: the comprehensive model, under which law-enforcers try to apprehend and punish every violator within the bounds of feasibility; and the randomized model, under which law enforcers economize their efforts by apprehending a small number of violators and heightening their penalties so as to make violations unattractive. This Article supplements this list of options by developing a strategic model of law enforcement. Under this model, law enforcers concentrate their effort on the worst, or most rampant, violators at a given point in time while leaving all others unpunished. This enforcement …

The Civil Action For Breach Of Statutory Duty In The Common Law World, Neil J. Foster

Neil J Foster

The tort action for Breach of Statutory Duty provides an intersection between the goals of private law and ‘public’ goals as determined by legislation. But the question as to when, in what circumstances, and why, a civil action should be available to a claimant whose statutory rights have been breached continues to be agitated. This paper argues that the tort, far from deserving the accusations of incoherence and unpredictability sometimes levelled at it in the common law world, has a respectable and coherent history and justification within the common law of torts. There are reasons for doubting whether it should …

Climate Change And The Public Law Model Of Torts: Reinvigorating Judicial Restraint Doctrines, Donald G. Gifford

Donald G Gifford

The Article traces the origins of climate change litigation back to earlier forms of “public interest tort litigation,” including government actions against the manufacturers of cigarettes, handguns and lead pigment. Public interest tort litigation is different in kind from traditional tort actions, even asbestos and other mass products litigation. These new lawsuits address society-wide or even worldwide problems and seek judicially imposed regulatory regimes. As such, they more closely resemble civil rights litigation and what Abram Chayes deemed “the public law model” than they do earlier tort actions. I conclude that the public law model of tort litigation is the …

Fueling The Coal War--The Courts, The Feds, And The Epa: Who Is In A Better Position To Curb Coal-Related Pollution?, Corwyn Davis

Corwyn M Davis

ABSTRACT: With the United States’ continued and growing dependence on the use of coal for energy production, it is vital that the country examines ways to eliminate coal wastes more efficiently. The courts have varying opinions on who should ultimately bear responsibility for environmental torts connected with carbon pollution. With greenhouse gases and global warming stealing the environmental spotlight, the equally hazardous nature of coal combustion waste disposal has taken a back door to national policy reform. This paper introduces the problems associated with the disposal of this hazardous by-product. By analyzing the status quo of environmental regulation, it becomes …

No Role For Apology: Remedial Work And The Problem Of Medical Injury, Steven Raper

Steven E Raper MD

The past decade has produced ample evidence that patients are injured by medical care. A landmark document “To Err is Human” articulated a way to protect patients based on analysis of health care organizations according to complex systems and principles of human performance rather than “blame and shame”. To understand how to prevent injury, full – but protected – disclosure is required as well as institutional will to change. The literature is full of success stories all of which are based on frank and honest reporting of adverse events. Central to such reporting and analysis is the ability to discuss …

Mainstreaming Privacy Torts, Danielle Keats Citron

Danielle Keats Citron

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Finding The Error In Daubert, Mark G. Haug

mark g haug

This article proposes an alternative criterion to Daubert and its progeny—including the amended FRE 702 of 2000—for the admissibility of expert testimony. Relevant to our proposal is the theoretical and empirical difficulty of Daubert’s factor concerning the known or potential error rate. Lurking within this particular factor, however, is the key to a non-controversial criterion for admissibility that is relatively easy to implement. To support our proposal, we consider the error factor from a scientific viewpoint. Using the Daubert case, and a scientific sampling of cases relying upon Daubert for guidance, we endeavor to show how courts have struggled with …

Reflections On The Historical Context Of Section 402a, Oscar S. Gray

Oscar S. Gray

No abstract provided.

Some Thoughts On "The Economic Loss Rule" And Apportionment, Oscar S. Gray

Oscar S. Gray

This paper illustrates the process of comments upon and revisions to Restatement drafts, based on successive drafts of the proposed Restatement Third of Torts: Liability for Economic Loss.

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

Oscar S. Gray

This casebook is designed for teaching case analysis and the impact of social and economic factors on the common law. Enough of the majority opinions, and often the dissenting opinions, is presented to illustrate how the cases fit together with precedents and to enable students to evaluate competing arguments. The latest edition, though streamlined from previous editions, adds both coverage of emerging areas of liability, including claims under the alien tort statute, and traditional torts applied in new factual contexts, such as cyberspace and biomedical engineering.

Commentary [On Negligent Infliction Of Emotional Distress], Oscar S. Gray

Oscar S. Gray

These comments question the terminology used in the Third Restatement of Torts for psychological effects, partially on the ground of obsolescence in light of developments in the neurosciences. Instead of the distinction emphasized in the Third Restatement between “physical harm” and “emotional disturbance” (or “distress”), they suggest a distinction between “harm” that constitutes an impairment of functionality, which would be treated as a free-standing basis for liability, like conventional diseases or injuries, and “mere feelings”, which would continue to be compensable in negligence only parasitically. Similarly, the interest protected should be regarded not as an interest in freedom from “disturbance” …

The Draft Ali Product Liability Proposals: Progress Or Anachronism?, Oscar S. Gray

Oscar S. Gray

No abstract provided.

Misrepresentation - Part I, Fleming James, Oscar Gray

Oscar S. Gray

No abstract provided.

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.

Misrepresentation - Part Ii, Fleming James, Oscar S. Gray

Oscar S. Gray

No abstract provided.

On Sugarman On Tort-Chopping, Oscar S. Gray

Oscar S. Gray

No abstract provided.

From Chem-Dyne To Burlington Northern: Apportioning Cleanup Costs In The New Era Of Joint And Several Cercla Liability, Michael K. Foy

Michael K. Foy

Though not explicitly endorsed in the statute’s text, courts have not hesitated to impose joint and several liability on defendants sued by the federal government under CERCLA, an environmental statute intended to enable cleanup of contaminated land and to impose liability on parties responsible for that contamination. However, because CERCLA cleanups cost many millions of dollars, CERCLA defendants vehemently contest joint and several liability by arguing the harm they caused is divisible from the broader contamination. Courts are ostensibly willing to accept these divisibility arguments whenever there is a “reasonable basis” for apportioning; yet in practice, nearly all courts render …

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

Christopher J Robinette

Damnded For Their Judgment: Tort Liability For Consensus Standard Setting, Robert H. H. Heidt

Robert H. H. Heidt

No abstract provided.

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Jacqueline D Lipton

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Baseball's Moral Hazard: Law, Economics And The Designated Hitter Rule, Steve P. Calandrillo

Steve P. Calandrillo

No subject prompts greater disagreement among baseball fans than the designated hitter rule, which allows teams to designate a player to hit for the pitcher. The rule increases the number of hit batsmen, and some have suggested this effect is a result of “moral hazard,” which recognizes that persons insured against risk are more likely to engage in dangerous behavior. Because American League pitchers do not bat, they allegedly are not deterred by the full cost of making risky, inside pitches—namely, retribution during their next at bat. Using a law-and-economics approach, this Article concludes that the designated hitter rule creates …

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.

Second Thoughts On Damages For Wrongful Convictions, Lawrence Rosenthal

Lawrence Rosenthal

After the DNA-inspired wave of exonerations of recent years, there has been widespread support for expanding the damages remedies available to those who have been wrongfully accused or convicted. This article argues that the case for providing such compensation is deeply problematic under the justificatory theories usually advanced in support of either no-fault or fault-based liability. Although a regime of strict liability is sometimes thought justifiable to as a means of creating an economic incentive to scale back conduct thought highly likely to produce social losses, it is far from clear that the risk of error is so high in …

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

Christopher J Robinette

Civil Liability Arising From The Buncefield Explosion- Colour Quest Ltd V Total Downstream Uk Plc, Neil J. Foster

Neil J Foster

Explores civil liability arising from the Buncefield refinery explosion.

Paradigm Shifts In Products Liability And Negligence, Alani Golanski

Alani Golanski

What's Reasonable?: Self-Defense And Mistake In Criminal And Tort Law, Caroline Forell

Caroline A Forell

In this Article, Professor Forell examines the criminal and tort mistake-as-to-self-defense doctrines. She uses the State v. Peairs criminal and Hattori v. Peairs tort mistaken self-defense cases to illustrate why application of the reasonable person standard to the same set of facts in two areas of law can lead to different outcomes. She also uses these cases to highlight how fundamentally different the perception of what is reasonable can be in different cultures. She then questions whether both criminal and tort law should continue to treat a reasonably mistaken belief that deadly force is necessary as justifiable self-defense. Based on …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …