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Articles 1 - 30 of 81
Full-Text Articles in Law
Recovery In Louisiana Tort Law For Intangible Economic Loss: Negligence Actions And The Tort Of Intentional Interference With Contractual Relations, David Robertson
Recovery In Louisiana Tort Law For Intangible Economic Loss: Negligence Actions And The Tort Of Intentional Interference With Contractual Relations, David Robertson
Dr David Robertson
No abstract provided.
Answering A Fool According To His Folly: Ruminations On Comparative Fault Thirty Years On, Frank L. Maraist, H. Alston Johnson Iii, Thomas C. Galligan Jr., William R. Corbett
Answering A Fool According To His Folly: Ruminations On Comparative Fault Thirty Years On, Frank L. Maraist, H. Alston Johnson Iii, Thomas C. Galligan Jr., William R. Corbett
William R. Corbett
No abstract provided.
Determining The Fair And Reasonable Value Of Medical Services: The Affordable Care Act, Government Insurers, Private Insurers And Uninsured Patients, George A. Nation Iii
Determining The Fair And Reasonable Value Of Medical Services: The Affordable Care Act, Government Insurers, Private Insurers And Uninsured Patients, George A. Nation Iii
George A Nation III
Hospitals' chargemaster prices are grossly inflated; no one should be required to pay them. Thia article offers a formula to determine the fair and reasonable value of medical services.
The Problem Of Internalization Of Social Costs And The Ideas Of Ronal Coase, Enrico Baffi
The Problem Of Internalization Of Social Costs And The Ideas Of Ronal Coase, Enrico Baffi
enrico baffi
This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful andd sometimes impossible. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms to …
The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi
The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi
enrico baffi
This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful and in many casesimossible. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful activity without introducing mechanisms …
The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi
The Problem Of Internalization Of Social Costs And The Ideas Of Ronald Coase, Enrico Baffi
enrico baffi
This work examines the influence of Coasian thought on the analysis of externalities as used by economists and legal economists. Ronald Coase, a Chicago scholar, advanced a series of criticisms of the Pigovian tax system; the theorem that bears his name is merely the best known. In his 1960 work, he sought to demonstrate that the internationalization of social costs was not always socially useful and also difficult if not impossible to realize. In addition, he identified other institutional solutions to which systems can - and often do - resort. One of these solutions is to simply authorize the harmful …
Extreme Sports And Extreme Liability: The Effect Of Waivers Of Liability In Extreme Sports, Amanda Greer
Extreme Sports And Extreme Liability: The Effect Of Waivers Of Liability In Extreme Sports, Amanda Greer
Amanda Greer
Athletes who participate in extreme sports know that by just participating in the sport, they are at a huge risk for injury. This risk for injury, however, should not include the negligent acts of the event’s sponsors and promoters. Before an athlete agrees to compete in an event, the athlete will generally sign a liability waiver that contains language absolving the sponsor from its own acts of negligence. These liability waivers in turn will bar an athlete from imposing liability on a sponsor for any injuries the athlete may sustain as a result of a sponsor’s negligence. The purpose of …
To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman
To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman
Steven J. Heyman
In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and …
Announcing Remedies For Medical Injury: A Proposal For Medical Liability Reform Based On The Patient Protection And Affordable Care Act, Steven Raper
Steven E Raper MD
Recently reaffirmed, the Patient Protection and Affordable Care Act holds the promise of sweeping change in many critical aspects of the United States’ system of delivering health care. Indeed, medical liability reform is embedded into the DNA of the Obama presidency. Further, a Sense of the Senate statement raised a number of concerns over the current medical malpractice regime. These concerns led to the enactment of a small but conceptually important provision of the Affordable Care Act. Congress intends, however, to allow the states to develop liability reform through the allocation of 50 million dollars for State Demonstration Projects.
From …
Which Interests Should Tort Protect?, Jean M. Thomas
Which Interests Should Tort Protect?, Jean M. Thomas
Jean M Thomas
The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests …
Intangible Economic Loss In Louisiana, John Stanton
Intangible Economic Loss In Louisiana, John Stanton
John Stanton
This casenote follows the development of caselaw in Louisiana addressing the problem of intangible economic loss, (i.e., pure economic loss or supply-chain liability), an issue which all jurisdictions struggle to handle consistently. In particular, the piece notes the tension between the practicality of the Robins Dry Dock prohibitory rule and the equitable nature of using the standard negligence analysis. After noting the current state of confusion, a proposed way forward is suggested that allows for meritorious claims even without a proprietary interest, but does not allow for the industry-crippling liability of which the Robins Dry Dock progeny feared.
Efficiency Themes In Tort Law From Antiquity, M Stuart Madden
Efficiency Themes In Tort Law From Antiquity, M Stuart Madden
M Stuart Madden
Hellenic philosophers assessed the goals of society as: (1) the protection of persons and property from wrongful harm; (2) protection of the individual’s means of survival and prosperity; (3) discouragement of self-aggrandizement to the detriment of others; and (4) elevation of individual knowledge that would carry forward and perfect such principles. Roman law was replete with proscriptions against forced taking and unjust enrichment, and included rules for ex ante contract-based resolution of potential disagreement. Customary law perpetuated these efficient economic tenets within the Western World and beyond. The common law, in turn, has nurtured many of the same ends. From …
Organizational Standards Of Care For Tackling Wrongdoings, Klaus Heine, Kateryna Grabovets
Organizational Standards Of Care For Tackling Wrongdoings, Klaus Heine, Kateryna Grabovets
Kateryna Grabovets
Organizational misconduct has two generic sources: individual wrongdoings and coordination failures. The analysis of misconduct in organizations focuses mainly on individual wrongdoings. This paper aims at shedding more light on coordination failures as a separate trigger of organizational wrongdoing. We propose a framework which aligns insights from law and economics and organizational science to improve organizational designs with regard to error management. A main finding is that a risky activity will be associated with a steeper hierarchy than activities with a low risk profile. But the organizational design depends on other variables as well; for example, whether an innovative activity …
We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White
We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White
Prentice L White
WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …
The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang
The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi Jiyoung Bang
Naomi J Bang
ABSTRACT: THE GLOBAL SUPPLY CONTRACT CHARADE
HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR
Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to …
The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi J. Bang
The Global Supply Contract Charade: How Corporate Greed Fuels Human Trafficking And Forced Labor, Naomi J. Bang
Naomi J Bang
HOW CORPORATE GREED FUELS HUMAN TRAFFICKING AND FORCED LABOR
Human trafficking and forced labor reflect the dark side of globalization, where criminal gangs trade people through international channels via a rapidly growing network of electronic communications and transport. Unfortunately, it is not just the criminal element that is complicit in these activities. Multinational corporations also contribute through their massive global production chains, increasing chances that their products could be made by trafficked workers. Corporations also shift liability for these acts onto their overseas suppliers through “arm’s length” global supply contracts and by pointing to the sheer geographic distance between them. …
Comparative Negligence And Mitigation Of Damages - Two Sister Doctrines In Search Of Reunion, Yehuda Adar Dr.
Comparative Negligence And Mitigation Of Damages - Two Sister Doctrines In Search Of Reunion, Yehuda Adar Dr.
Yehuda Adar Dr.
This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …
Harmonizing The Affordable Care Act (Obama Care) With The Three Main National Systems For Healthcare Quality Improvement: The Tort, Licensure And Hospital Peer Review Systems, K Van Tassel
Katharine A. Van Tassel
According to an estimate by the Institute of Medicine made over a decade ago, treatment errors in hospitals alone caused 98,000 deaths yearly. This IOM report is proving to be very conservative. A recent Consumer Reports investigation came to the conclusion that “[m]ore than 2.25 million Americans will probably die from medical harm this decade…. That’s like wiping out the entire populations of North Dakota, Rhode Island, and Vermont. It’s a manmade disaster.”
One of the reasons for this astonishing mortality rate is the normative practice of custom-based medicine in the United States. A large and rapidly growing group of …
A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad
A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad
William L. Reynolds
This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite …
Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury
Toward A Neuroscience Model Of Tort Law: How Functional Neuroimaging Will Transform Tort Doctrine, Jean Eggen, Eric Laury
Jean M. Eggen
The “neuroscience revolution” has now gained the attention of legal thinkers and is poised to be the catalyst for significant changes in the law. Over the past several decades, research in functional neuroimaging has sought to explain a vast array of human thought processes and behaviors, and the law has taken notice. Although functional neuroimaging is not yet close to being a staple in the courtroom, the information acquired from these studies has been featured in a handful of cases, including a few before the United States Supreme Court. Our assertion involves the incorporation of functional neuroscience evidence in tort …
Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.
Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.
Yehuda Adar Dr.
This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …
Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.
Comparative Negligence And Mitigation Of Damages: Two Sister-Doctrines In Search Of Reunion, Yehuda Adar Dr.
Yehuda Adar Dr.
This article addresses a neglected problem in Anglo-American tort law, namely, the apparent inconsistency between comparative negligence and mitigation of damages. Notwithstanding the now unquestionable victory of comparative negligence over the old all-or-nothing doctrine of contributory negligence, the doctrine of mitigation (or avoidable consequences) seems to retain its doctrinal integrity. Under comparative negligence, any loss that the victim could have avoided is apportioned between the victim and the tortfeasor. In contrast, under the doctrine of mitigation, a tort victim can never recover for any element of loss that could have been avoided. The apparent tension between these two loss allocation …
Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt
Mistake-Proofing Medicine: Legal Considerations And Healthcare Quality Implications, Arlen W. Langvardt
Arlen W Langvardt
MISTAKE-PROOFING MEDICINE: LEGAL CONSIDERATIONS
AND HEALTHCARE QUALITY IMPLICATIONS
Authors: John R. Grout, John W. Hill, Arlen W. Langvardt (corresponding author).
Abstract
In 1999, the Institute of Medicine estimated that approximately 98,000 deaths resulted annually from medical errors. This shocking number does not appear to have lessened during the intervening years. Although mistake-proofing techniques similar to those that have proven useful in the product liability context hold great promise for reducing the number of medical errors, the adoption of such techniques in healthcare settings has not occurred to the extent it should have.
This article examines potentially useful mistake-proofing techniques, explores …
Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare
Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare
Daniel Hare
This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …
A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden
A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden
Derigan Silver
In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …
Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson
Jared A. Wilkerson
Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition in the Restatement (Second). This …
Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall
Kenneth J Duvall
Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …
Torts As (Only) Wrongs? An Empirical Perspective, Lawrence M. Solan, Joseph Sanders, Matthew Kugler, John M. Darley
Torts As (Only) Wrongs? An Empirical Perspective, Lawrence M. Solan, Joseph Sanders, Matthew Kugler, John M. Darley
Lawrence M. Solan
In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.
We begin with a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law …
Torts As (Only) Wrongs?: An Empirical Perspective, Lawrence Solan, Joseph Sanders, Matthew Kugler, John Darley
Torts As (Only) Wrongs?: An Empirical Perspective, Lawrence Solan, Joseph Sanders, Matthew Kugler, John Darley
Lawrence M. Solan
In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.
We begin with a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law …
The Law And Economics Of Products Liability, Keith N. Hylton
The Law And Economics Of Products Liability, Keith N. Hylton
Keith N Hylton
This paper presents a largely positive analysis of products liability law, in the sense that it aims to predict the incentive effects and the welfare consequences of the law, with close regard to its specific legal tests and the real-world constraints that impinge on these tests. The other major part of this paper is a normative assessment of the parts of products liability law that should be reformed. In contrast with the prevailing law and economics literature suggesting that products liability law reduces social welfare, I argue that the law probably improves social welfare, though it is in need of …