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Articles 1 - 14 of 14
Full-Text Articles in Law
Tort Law's Devaluation Of Stillbirth, Jill W. Lens
Tort Law's Devaluation Of Stillbirth, Jill W. Lens
Jill Wieber Lens
In the United States, more than sixty-five babies die daily due to stillbirth—death of an unborn baby after twenty weeks of pregnancy but before birth. New medical research suggests that at least one fourth of those deaths are preventable with proper medical care. Stated differently, one fourth of stillbirths are due to medical malpractice. In almost all states, tort law provides recourse for mothers after the death of their children due to stillbirth.
This Article uses feminist legal theory and empirical research of parents after stillbirth to demonstrate that tort law devalues stillbirth. That devaluation is due to the cognitive …
An Undetectable Constitutional Violation, Jill W. Lens
An Undetectable Constitutional Violation, Jill W. Lens
Jill Wieber Lens
In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.
Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin …
Justice Thomas, Civil Asset Forfeitures, And Punitive Damages, Jill W. Lens
Justice Thomas, Civil Asset Forfeitures, And Punitive Damages, Jill W. Lens
Jill Wieber Lens
For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and …
Defective Punitive Damage Awards, Jill W. Lens
Defective Punitive Damage Awards, Jill W. Lens
Jill Wieber Lens
Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights.
This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of …
Product Recalls: Why Is Tort Law Deferring To Agency Inaction?, Jill W. Lens
Product Recalls: Why Is Tort Law Deferring To Agency Inaction?, Jill W. Lens
Jill Wieber Lens
Tort law currently recognizes liability related to a product recall in only narrow circumstances. Liability is possible if the manufacturer acts unreasonably in an agency-ordered recall or in a voluntary recall, which is likely the result of agency encouragement. What this narrow standard leaves out is possible liability for a manufacturer’s choice to simply not recall. But courts agree that only government agencies are equipped to evaluate the reasonableness of a recall and to determine if one is justified. Thus, if an agency never effects a product recall, tort liability is not possible.
A few commentators have applauded or criticized …
Stays Pending Appeal: Why The Merits Should Not Matter, Jill W. Lens
Stays Pending Appeal: Why The Merits Should Not Matter, Jill W. Lens
Jill Wieber Lens
In Nken v. Holder, the Supreme Court delineated the standards that should guide a court’s discretion in deciding whether to stay injunctive relief pending appeal. A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label, it is not surprising to see courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.
Stays play an important role in …
Insurance Coverage For Elite Student-Athletes, Jill W. Lens, Joshua Lens
Insurance Coverage For Elite Student-Athletes, Jill W. Lens, Joshua Lens
Jill Wieber Lens
College athletics is commonly referred to as “big business” for universities. But it’s also big business for elite student-athletes, meaning those who are talented enough to later become professional athletes. What happens if they get injured while still in college? An injury could cost an elite student-athlete millions of dollars, in the form of lost expected future income from playing professional sports. More and more elite student-athletes are looking to insurance to help with this risk.
This Article explores the types of insurance available for elite-student athletes, mainly total disability and loss-of-value insurance. The Article is the first to focus …
Tort Law's Deterrent Effect And Procedural Due Process, Jill W. Lens
Tort Law's Deterrent Effect And Procedural Due Process, Jill W. Lens
Jill Wieber Lens
The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed a right to present defenses. The defendants also both claimed that the mechanisms in place in those cases — the consideration of nonparties in imposing punitive damages and the use of sampling to litigate a large class action — violated that right. The Supreme Court agreed, a death knell for the advocated use of both mechanisms to counteract tort law’s under-litigation problem: the fact that not all injured persons sue, precluding tort law’s ability to achieve effective deterrence.
This Article argues that procedural due process …
Warning: A Post-Sale Duty To Warn Targets Small Manufacturers, Jill W. Lens
Warning: A Post-Sale Duty To Warn Targets Small Manufacturers, Jill W. Lens
Jill Wieber Lens
The majority of states now obligate manufacturers to warn about dangers of their products that are discoverable after the sale. Commentators and courts have been hesitant about this obligation because of the potential burden it puts on manufacturers — the costs of identifying users and warning them of the danger. The consensus is that only a factually dependent post-sale duty to warn should exist, obligating manufacturers to warn only if a reasonable manufacturer would do so. A reasonable manufacturer, of course, would warn only if the danger to be warned of justifies the costs of the warning.
This Article is …
Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens
Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens
Jill Wieber Lens
Justice Holmes introduced his bad man as a tool to separate law and morality. The bad man is not affected by morality, and sees a tort duty only as an obligation to pay damages. The bad man does not consider any chance of escaping liability, so he sees that obligation as mandatory. Applied hypothetically to punitive damages, the bad man would not appreciate the morality basis for imposing punitive damages or the moral condemnation and stigma that traditionally results from that imposition. Instead, he sees punitive damages as just another check that he will be required to write.
In Exxon …
Procedural Due Process And Predictable Punitive Damage Awards, Jill W. Lens
Procedural Due Process And Predictable Punitive Damage Awards, Jill W. Lens
Jill Wieber Lens
In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable punitive damage awards. Instead, the Court suggested pegging punitive damage awards to compensatory damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding.
Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging punitive …
Honest Confusion: The Purpose Of Compensatory Damages In Tort And Fraudulent Misrepresentation, Jill W. Lens
Honest Confusion: The Purpose Of Compensatory Damages In Tort And Fraudulent Misrepresentation, Jill W. Lens
Jill Wieber Lens
Tort law achieves its main purpose of compensating injured plaintiffs by awarding compensatory damages, which put the plaintiff in the same place as if the tort had not occurred. The amount of compensatory damages is necessarily connected to the plaintiff’s injury. For a long time, however, courts have broken that connection in fraudulent misrepresentation claims. The majority of courts hear “fraud” and award benefit-of-the-bargain damages, claiming that the plaintiff is not whole unless she receives compensation for the lost expectation allegedly created by the misrepresentation. Sometimes though, these same courts deny the plaintiff this compensation if the defendant’s conduct was …
Punishing For The Injury: Tort Law’S Influence On The Constitutional Limitations Of Punitive Damage Awards, Jill W. Lens
Punishing For The Injury: Tort Law’S Influence On The Constitutional Limitations Of Punitive Damage Awards, Jill W. Lens
Jill Wieber Lens
The limitations on a punitive damage award depend on the conception of punitive damages. Is it a private law remedy, limited to resolving the dispute between the parties? Or is it a public law remedy, capable of addressing public harm and achieving public good? The Supreme Court has not wavered from public law ideas of punitive damages - that the damages serve the state’s interests and are similar to criminal punishments. At the same time, the Court has focused on the actual injury to the plaintiff in its holdings and prohibited punitive damages from punishing harm to nonparties, indicating that …
The (Overlooked) Consequence Of Easing The Prohibition Of Expert Legal Testimony In Professional Negligence Claims, Jill W. Lens
The (Overlooked) Consequence Of Easing The Prohibition Of Expert Legal Testimony In Professional Negligence Claims, Jill W. Lens
Jill Wieber Lens
Many believe that the prohibition of expert legal testimony has no place in modern evidence law, and, increasingly, courts allow experts to testify to legal conclusions as long as the jury is able to understand the legal concepts at issue. Within the professional negligence context, however, the easing of the prohibition muddles the distinction between common law negligence and negligence per se. Without the prohibition, an expert can testify that a legally established professional standard exists even though only the court has the ability to decide whether a law provides the basis for negligence per se. This consequence, assumedly overlooked, …