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 …

Accountable Care Organizations: The Clash Of Liability Standards With Cost Cutting Goals”, Christopher R. Smith

Christopher R Smith

This article seeks to examine the conflict between non-cost conscious medical malpractice liability standards and health care cost cutting measures within the context of Accountable Care Organizations (“ACOs”) under the new health care reform law. The article begins by providing an overview of the high level of health care spending within the United States health care system in order to provide a context for better understanding policymakers’ push for cost cutting measures, including ACOs. The article then examines the tension between cost containment efforts and provider medical liability standards through an examination of the “stuck in the middle” mentality that …

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 …

Disputes Related To Healthcare Across National Boundaries: The Potential For Arbitration, Deth Sao

Deth Sao

Trade in international health services has the potential to play a leading role in the global economy, but its rapid growth is impeded by legal barriers. Advances in technology and cross-border movement of people and health services create legal ambiguities and uncertainties for businesses and consumers involved in transnational medical malpractice disputes. Existing legal protections and remedies afforded by traditional judicial frameworks are unable to resolve the following challenges: (1) assertion of personal jurisdiction; (2) choice of forum and law considerations; (3) appropriate theories of liability for injuries and damages arising from innovations in medical care and delivery of health …

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Understanding The Medical Record In Shoulder Dystocia Cases. Why These Cases Sometimes Should Have A No-Fault Recovery, Paul A. Race

Paul A Race

Shoulder dystocia is one of the most common causes of litigation in Obstetrics and Gynecology. The most common serious complication from shoulder dystocia is brachial plexus injury although death of the baby can also occur. Brachial plexus injuries lead to paralysis of the arm of the neonate. While most of the injuries eventually resolve, a small percentage will remain permanent. This article explores the areas of litigation involved with brachial plexus injuries. It discusses what the attorney should look for in the medical record. It reviews the standard of care both pre-labor and post-labor. It also looks at the controversial …

La Responsabilità Della Società Di Revisione, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

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 …

An Ethical Rabbit Hole: Model Rule 4.4, Intentional Interference With Former Employee Non-Disclosure Agreements And The Threat Of Disqualification, Maura I. Strassberg

Maura I Strassberg

ABSTRACT The Model Rule 4.4 prohibition on the use of methods of obtaining evidence that violate the rights of third parties can be read to prohibit the informal questioning of a former employee with a non-disclosure agreement to advance a proposed or pending lawsuit, as this may constitute the tort of intentional interference with contract. The use of non-disclosure agreements is proliferating and, although actual tort liability in this context has hardly ever been litigated, it is easy to strategically use this tort to allege an ethical violation that can be the basis of a disqualification motion. The threat of …

Lessons In Price Stability From The U.S. Real Estate Market Collapse, Andrea J. Boyack

Andrea J Boyack

The U.S. residential housing market collapse illustrates the consequences of ignoring risk while funding mortgage borrowing. Collateral over-valuation was a foundational piece of the crisis. Over the past few decades, secondary markets, securitization, policy and psychology increased the flow of funds into real estate. At the same time, financial market segmentation divorced risk from reward. Increased mortgage capital availability, unmitigated by proper risk allocation, led to real estate price inflation. Social trends and government policies exacerbated both the mortgage capital over-supply and the risk-valuation disconnect.

The Dodd-Frank Act inadequately addresses the underlying asset valuation problem. Federal regulation may support market …

Private Regulation, Ronen Avraham

ronen avraham

In this paper I propose implementing a “private regulation regime” for healthcare which would realign health care providers’ incentives so as to significantly reduce the healthcare system’s three major cost drivers: medical errors, defensive medicine and offensive medicine. The private regulation regime would consist of private firms which would develop clinical practice guidelines and sell them to client health care providers. In exchange for purchasing, and following, the guidelines, providers would be immune from medical malpractice lawsuits. The private regulators, though, would face liability for producing suboptimal guidelines. Providers would be less likely to make medical errors because they would …

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

A Distortion-Analysis Protocol For Economic-Efficiency Analysis: A Third-Best-Economically-Efficient Response To The General Theory Of Second Best, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Tort-Related Risk Costs And The Hand Formula For Negligence, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Background (Fixed-Cost) Avoidance-Choices, Foreground (Variable-Cost) Avoidance-Choices, And The Economically Efficient Approach For Courts To Take To Marine-Salvage Cases: A Positive Analysis And Related Critique Of Landes And Posner’S Classic Study, Richard S. Markovits

Richard S. Markovits

No abstract provided.

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss

Michael I Krauss

Virginia's most important Proximate Causation case turns out also to be a revealing case study of government regulation, of women's rights and of race relations in the Old Dominion. After considerable original research, this article presents the "rest of the story." This article will become, we think, an important contribution both to Tort theory, to American legal history and to the history of Washington, DC and of Virginia.

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 …

The Lavender Letter: Applying The Law Of Adultery To Same-Sex Couples And Same-Sex Conduct, Peter Nicolas

Peter Nicolas

In this manuscript, I examine the question whether the law of adultery applies to same-sex extramarital conduct, which has divided courts nationwide. While the case law to date has been sparse—since the issue has only arisen in the context of opposite-sex marriages in which one spouse has an extramarital same-sex relationship—with the growth in the number of states recognizing same-sex marriage, the question is certain to recur with increased frequency.

In the manuscript, I examine the question in four different contexts: criminal adultery prosecutions, fault-based divorce actions, civil tort actions for interference with the marital relationship, and murder cases raising …

Information Defects In The Age Of Information: When More Is Less, Edward C. Combs Jr.

Edward C Combs Jr.

Warning labels from product manufacturers serve both as a shield to the consumer from physical injury and as a safeguard to the manufacturer from civil liability. A question then arises whether these two distinct interests, that of the manufacturer and of the consumer, are equally protected by our current products liability jurisprudence. Another way to approach this question is by asking when is a product deemed “safe”? Is it determined by an assessment of the totality of injuries associated with its use or do we arrive at the premise that a product is “safe” when a court finds no liability …

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 …

How The Global Crime Syndicates Fuel Planet Destruction, Global Alliance

Global Alliance

since 1945 more environmental planet destruction has been fuelled and financed with ever more leveraged debt than in the previous 60 million years - it's applied terrorism against the global life support system under the protection racket of a corrupt law profession

The New Digitial Dating Behavior - Sexting: Teens' Explicit Love Letters: Criminal Justice Or Civil Liability, Terri R. Day

Terri R. Day

The New Digital Dating Behavior – Sexting: Teens’ Explicit Love Letters: Criminal Justice or Civil Liability proposes a unique response to the explosive combination of teens, sex and technology. This paper discusses why most teen sexting does not meet the Ferber definition of child pornography; therefore, a civil remedy for the dignitary and emotional harm caused by the public dissemination of private sexual pictures is far superior to imposing criminal sanctions. The proposed statutory civil cause of action would hold parents vicariously liable for the harms caused by their children’s sexting when done with actual malice. Recognizing that common law …

The New Digitial Dating Behavior - Sexting: Teens' Explicit Love Letters: Criminal Justice Or Civil Liability, Terri R. Day

Terri R. Day

The New Digital Dating Behavior – Sexting: Teens’ Explicit Love Letters: Criminal Justice or Civil Liability proposes a unique response to the explosive combination of teens, sex and technology. This paper discusses why most teen sexting does not meet the Ferber definition of child pornography; therefore, a civil remedy for the dignitary and emotional harm caused by the public dissemination of private sexual pictures is far superior to imposing criminal sanctions. The proposed statutory civil cause of action would hold parents vicariously liable for the harms caused by their children’s sexting when done with actual malice. Recognizing that common law …

The Boundaries Of Privacy Harm, M. Ryan Calo

M. Ryan Calo

Just as a burn is an injury caused by heat, so is privacy harm a unique injury with specific boundaries and characteristics. This Essay describes privacy harm as falling into two related categories. The subjective category of privacy harm is the unwanted perception of observation. This category describes unwelcome mental states—anxiety, embarrassment, fear—that stem from the belief that one is being watched or monitored. Examples include everything from a landlord listening in on his tenants to generalized government surveillance.

The objective category of privacy harm is the unanticipated or coerced use of information concerning a person against that person. These …

Samantar V. Yousuf: Development In The Laws Governing Civil Torture Claims In U.S. Courts., Solomon Shinerock

Solomon B. Shinerock

The Supreme Court’s recent opinion in Samantar v. Yousuf forecloses one possible avenue by which former foreign-government officials residing in the United States have sought to escape liability for human rights violations. Ruling simply that the Foreign Sovereign Immunities Act of 1976 does not provide immunity to individuals, the decision raises the question of what common law principles will govern the issue in the future. This article reviews the case and the common law doctrines that are likely to figure prominently in future civil suits alleging torture. Ultimately, the Samantar decision read together with existing principles of domestic and international …

Repairing Online Reputation: A New Multi-Modal Regulatory Approach, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected digital society, high profile examples of online abuses abound. Cyberbullies launch attacks on the less powerful, often significantly damaging victims’ reputations. Outside of reputational damage, online harassment, bullying and stalking has led to severe emotional distress, loss of employment, physical assault and even death. Recent scholarship has identified this phenomenon but has done little more than note that current laws are ineffective in combating abusive online behaviors. This article moves the debate forward both by suggesting specific reforms to criminal and tort laws and, more importantly, by situating those reforms within a new multi-modal framework for combating …