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Articles 1 - 30 of 295
Full-Text Articles in Law
The Externality Of Victim Care, Alan J. Meese
Federalism And Investor Protection: Constitutional Restraints On Preemption Of State Remedies For Securities Fraud, Manning Gilbert Warren Iii
Federalism And Investor Protection: Constitutional Restraints On Preemption Of State Remedies For Securities Fraud, Manning Gilbert Warren Iii
Manning G. Warren III
Warren discusses the Private Securities Litigation Reform Act and the National Securities Market Improvement Act, among other issues. Predominant federalism postulates foreclose the proposed intrusion into investors' tort remedies traditionally allowed by the states under common law.
Negligence: Purpose, Elements & Evidence: The Role Of Foreseeability In The Law Of Each State, Lee Peoples, Vicki Lawrence Macdougall
Negligence: Purpose, Elements & Evidence: The Role Of Foreseeability In The Law Of Each State, Lee Peoples, Vicki Lawrence Macdougall
Lee Peoples
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan Saab Fortney
Susan S. Fortney
Black's Law Dictionary defines “tort” as a civil wrong for which a remedy may be obtained. In examining both the economics and jurisprudence related to legal malpractice, the article discusses why the “remedy” portion of this definition is unavailable for many victims of legal malpractice. This discussion considers the different stages of a legal malpractice case, including the challenges that injured persons face in retaining experienced counsel to represent them, the anatomy of the legal malpractice case, and the difficulties in collecting judgements or settlements. The discussion will consider how “capture” and “judicial bias” contribute to the “disappearing legal malpractice …
Plastic Injuries, Anne Bloom
Plastic Injuries, Anne Bloom
Anne Bloom
Perceptions of injuries are culturally mediated, mutable, plastic. In tort litigation, however, the cultural plasticity with which we perceive and experience injuries is often ignored. This Article explores the cultural plasticity with which we perceive injuries through the lens of plastic surgery litigation. It argues that determinations of injury in plastic surgery litigation turn on the culturally biased — and highly mutable — perceptions of medical professionals. More broadly, the Article argues that culture shapes perceptions of injuries in tort litigation as a whole. To make these points, the Article examines a prototypical plastic surgery case and surveys a range …
Book Review Of The Measure Of Injury: Race, Gender, And Tort Law, By Martha Chamallas And Jennifer B. Wriggins, Anne Bloom, Julie Davies
Book Review Of The Measure Of Injury: Race, Gender, And Tort Law, By Martha Chamallas And Jennifer B. Wriggins, Anne Bloom, Julie Davies
Anne Bloom
No abstract provided.
The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel
The Growing Consumer Exposure To Nanotechnology In Everyday Products: Regulating Innovative Technologies In Light Of Lessons From The Past, Katharine Van Tassel
Katharine Van Tassel
This Article discusses the public health, regulatory, legal, and ethical issues raised by the developing appreciation of the negative physical effects and potential health risks associated with nanotech products, and is arranged as follows. After this Introduction, this Article describes the present scientific understanding of the health risks associated with the consumption of nanoparticles. Next, a summary of the existing FDA regulatory structure that governs food, dietary supplements, cosmetics, and sunscreens is provided along with an explanation of why these regulations fail to protect public health when applied to regulate the nanotech versions of these products. The Article goes on …
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Catherine Fisk
A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager
Fiduciary-Isms: A Study Of Academic Influence On The Expansion Of The Law, Daniel B. Yeager
Daniel B. Yeager
Fiduciary law aspires to nullify power imbalances by obligating strong parties to give themselves over to servient parties. For example, due to profound imbalances of legal know-how, lawyers must as fiduciaries pursue their clients’ interests, not their own, lest clients get lost in the competitive shuffle. As a peculiar hybrid of status and contract relations, politics and law, compassion and capitalism, fiduciary law is very much in vogue in academic circles. As vogue as it is, there remains room for my “Fiduciary-isms...”, a meditation on the expansion of fiduciary law from its origins in the law of trusts through partnerships, …
It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen
It's About Time: The Long Overdue Demise Of Statutes Of Repose In Latent Toxic Tort Litigation, Jean M. Eggen
Jean M. Eggen
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 …
A Process Theory Of Torts, Jay Tidmarsh
Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus
Celebrity Newsgathering And Privacy: The Transformation Of Breach Of Confidence In English Law, John D. Mccamus
John D. McCamus
In recent years, a series of leading cases have returned to consider these questions. The implications of these decisions for the current shape of English law relating to civil redress for privacy invasion are the subject of this article. Surprisingly, perhaps, English courts have remained steadfast in their refusal to recognize invasion of privacy as a tort and in doing so have quite explicitly declined to rely on American experience in this area. Rather, English courts have preferred to resist innovation of this kind and leave the difficult question of privacy law reform to Parliament. On a number of recent …
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
Probability Theory Meets Res Ipsa Loquitor, David H. Kaye
David Kaye
Day in and day out, attorneys, judges, and jurors must estimate probabilities. To be sure, we rarely quantify such estimates of probability and almost never adopt the terminology and mathematics of probability theory to resolve matters. Nevertheless, the mathematical theory of probability can be applied to legal problems in various ways. This article uses probability theory normatively in an effort to clarify one aspect of the famous tort doctrine known as res ipsa loquitur. While not urging that jurors be instructed in probability theory or be equipped with microprocessors, it does seek an accurate statement of the res ipsa doctrine …
The Prosser Letters: 1917-1948, Christopher Robinette
The Prosser Letters: 1917-1948, Christopher Robinette
Christopher J Robinette
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Jill M. Fraley
By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …
Do Black Lives Matter?: Race As A Measure Of Injury In Tort Law, Alberto Bernabe
Do Black Lives Matter?: Race As A Measure Of Injury In Tort Law, Alberto Bernabe
Alberto Bernabe
Civil Liability For Injuries Caused By Dogs After Tracey V. Solesky: New Path To The Future Or Back To The Past?, Alberto Bernabe
Civil Liability For Injuries Caused By Dogs After Tracey V. Solesky: New Path To The Future Or Back To The Past?, Alberto Bernabe
Alberto Bernabe
Can We Secure The Hallowed Halls Of Academe?, Denis Binder
Can We Secure The Hallowed Halls Of Academe?, Denis Binder
Denis Binder
Toward A Theory Of Stare Decisis, Martin Shapiro
Toward A Theory Of Stare Decisis, Martin Shapiro
Martin Shapiro
Proposes a theory of stare decisis which draws upon the insights of communications theory as well as the decision-making process in tort law. Branches of communications theory; Discussion on the information and redundancy concepts of syntactics; Model which have overshadowed the importance of redundancy in error correction; Key activity of the tort organization and its litigational market operating under the rules of stare decisis; Reason behind the survival of stare decisis.
In The Eye Of The Beholder: Tort Litigants' Evaluations Of Their Experiences In The Civil Justice System, E. Lind, Robert Maccoun, Patricia Ebener, William Felstiner
In The Eye Of The Beholder: Tort Litigants' Evaluations Of Their Experiences In The Civil Justice System, E. Lind, Robert Maccoun, Patricia Ebener, William Felstiner
Robert MacCoun
Little is known about the reactions of tort litigants to traditional and alternative litigation procedures. To explore this issue, we interviewed litigants in personal injury cases in three state courts whose cases had been resolved by trial, court-annexed arbitration, judicial settlement conferences, or bilateral settlement. The litigants viewed the trial and arbitration procedures as fairer than bilateral settlement, apparently because they believed that trials and arbitration hearings gave their case more respectful treatment. They were less satisfied with the outcome of judicial settlement conferences than with the outcome of bilateral settlements, because judicial settlement conference outcomes were more likely to …
Estimating Liability Risks With The Media As Your Guide, Daniel Bailis, Robert Maccoun
Estimating Liability Risks With The Media As Your Guide, Daniel Bailis, Robert Maccoun
Robert MacCoun
Argues that the media exaggerates the number of multimillion-dollar awards in lawsuits; US.
Causation In Disgorgement, Mark P. Gergen
Causation In Disgorgement, Mark P. Gergen
Mark P. Gergen
The Restatement (Third) of Restitution and Unjust Enrichment offers scant guidance on how to determine wealth legally attributable to a wrong for purposes of disgorgement. The black letter admits defeat, stating, "[T]he court may apply such tests of causation and remoteness, . . . may recognize such credits or deductions, and may assign such evidentiary burdens, as reason and fairness dictate, consistent with the object of restitution . . . ."' The comments warn against resort to mechanical rules, including the familiar rule of but-for causation. They recommend merging the factual issue of causation with issues of policy and fairness …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Doug Rendleman
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla
What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla
Rod Smolla
Not available.
Reflections On The Theory And Administration Of Strict Tort Liability For Defective Products, John Montgomery, David Owen
Reflections On The Theory And Administration Of Strict Tort Liability For Defective Products, John Montgomery, David Owen
David Owen
No abstract provided.
A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly
A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly
Marie T. Reilly
This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …
Making Sense Of Successor Liability, Marie T. Reilly
Making Sense Of Successor Liability, Marie T. Reilly
Marie T. Reilly
A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton
Timothy D. Lytton
This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …
Responsibility For Human Suffering: Awareness Participation And The Frontiers Of Tort Law , Timothy D. Lytton
Responsibility For Human Suffering: Awareness Participation And The Frontiers Of Tort Law , Timothy D. Lytton
Timothy D. Lytton
No abstract provided.