Law Commons^™

Summary Of Skender V. Brunsonbuilt Constr. & Dev. Co., 122 Nev. Adv. Op. No. 11, Chris Stein

Nevada Supreme Court Summaries

Appeal from a district court judgment entered on a jury verdict in a constructional defect case and an order awarding interest, costs, and attorney fees.

Duty In Tort Law: An Economic Approach, Keith N. Hylton

Faculty Scholarship

Theories of tort law have focused on the breach and causation components of negligence, saying little if anything about duty. This paper provides a positive economic theory of duty doctrine. The theory that best explains duty doctrines in tort law is the same as the theory that explains strict liability doctrine. The core function of both sets of doctrines is to regulate the frequency or scale of activities that have substantial external effects. Strict liability aims to suppress or tax activities that carry unusually large external costs. Duty doctrines, especially those relieving actors of a duty of care, serve several …

The Problem Of Social Cost In A Genetically Modified Age, Paul J. Heald, James C. Smith

Scholarly Works

In Part I of this Article, we apply the Coase Theorem and its most useful corollary to the problem of pollen drift. We conclude that the liability of pollen polluters should be governed by balancing rules against nuisance law, to be applied on a case-by-case basis, rather than by a blanket liability or immunity rule. We also conclude that truly bystanding non-GMO farmers should have a viable defense to patent infringement because liability would result in the application of a reverse Pigovian tax that cannot be justified under accepted economic theory. Only a contextual approach can account for the wide …

Of Apples And Trees: Adoption And Informed Consent, Ellen Wertheimer

Working Paper Series

This article argues that the doctrine of informed consent should apply to the process of adopting a child. There is substantial evidence that all adopted children are at higher risk of learning disabilities and mental health problems than nonadopted children. The article first summarizes the social science evidence demonstrating these risks and discusses some of the reasons why more extensive studies have not yet been done. The article then turns to the law of informed consent as created and applied in the contexts of medicine and law, and concludes that informed consent doctrine should apply to the process of adoption. …

Chasing The Illusory Pot Of Gold At The End Of The Rainbow: Negligence And Strict Liability In Design Defect Litigation, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Bridging The Relational-Regulatory Gap: A Pragmatic Information Policy For Patient Safety And Medical Malpractice, William M. Sage, Joshua Graff Zivin, Nathaniel B. Chase

Faculty Scholarship

The Article distinguishes and explores three categories of information use: Helping patients understand and participate in their care; Improving patient safety, including analyzing medical errors and identifying unsafe health care providers and practices; and Assessing the performance of the medical liability system in its many dimensions including deterrence, compensation, justice, administrative efficiency, and stability.

For each category, the Article comments on existing laws or programs for information reporting or disclosure, points out major tensions or ambiguities, and suggests pragmatic improvements.

Reprocessing Single-Use Medical Devices: The State Of The Debate, Brian E. Ray, Mark Hermann

Law Faculty Articles and Essays

Reprocessing single-use medical devices is a growing but controversial industry subject to an increasingly complex and fast-developing set of regulations and a wide range of unresolved legal issues.

The Welding Fume Case And The Preemptive Effect Of Osha’S Hazcom Standard On Common Law Failure-To-Warn Claims, Richard C. Ausness

Law Faculty Scholarly Articles

The Occupational Health and Safety Act (the OSH Act) affects more than ninety million workers in the United States. The OSH Act is administered by the Occupational Health and Safety Administration (OSHA), which promulgates health and safety standards for the workplace. Although OSHA standards do not regulate product manufacturers directly, they may affect liability when manufacturers are sued by workers who are injured by allegedly defective products provided by their employers. With increasing frequency, manufacturers are contending that the OSH Act or OSHA standards preempt these claims. In particular, manufacturers argue that the Hazard Communication Standard (HazCom Standard) should preempt …

The Death Of Causation: Mass Products Torts' Incomplete Incorporation Of Social Welfare Principles, Donald G. Gifford

Faculty Scholarship

Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation. This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers’ compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, …

Wrongful Discharge: The Use Of Federal Law As A Source Of Public Policy, Nancy M. Modesitt

All Faculty Scholarship

Wrongful discharge in violation of public policy circumscribes the employment at-will doctrine by prohibiting employers from firing employees who engage in conduct that is deemed to be protected by state or federal public policy. While much has been written about the pros and cons of such wrongful discharge claims, to date no scholarship has focused on the problems that arise when the source of public policy is a federal rather than state statute. This article analyzes the historical and current approaches to the use of federal statutes as a source of public policy to protect employees against discharge, concluding that …

Information, Litigation, And Common Law Evolution, Keith N. Hylton

Faculty Scholarship

It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This article presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the …

Responders’ Responsibility: Liability And Immunity In Public Health Emergencies, Sharona Hoffman

Faculty Publications

Many experts predict the advent of a public health emergency resulting from a flu pandemic or bioterrorism attack in the foreseeable future. At the same time, many health care providers express significant concern about liability arising from emergency response activities, because it is unlikely that they would be able to provide optimal care in crisis conditions. They also state that this concern will likely influence their willingness to be involved in response activities. This article addresses issues that have received little attention in the legal literature: liability and immunity in public health emergencies. The article provides a first-of-its-kind comprehensive analysis …

Choice, Consent, And Cycling: The Hidden Limitations Of Consent, Leo Katz

All Faculty Scholarship

Most legal scholars assume that if V consents to allow D to do something to him, such consent makes D's actions legally and morally acceptable. To be sure, they are willing to make an exception when consent is given under a specified list of conditions: Force, fraud, incompetence, third-party effects, unequal bargaining power, commodification, paternalism - all of these may be grounds for rejecting the validity of V's consent. We might call scholars who take this view of consent quasi-libertarians. In this Article, I argue against the quasi-libertarian view of consent. My central claim is that the validity of consent …

“After You, My Dear Alphonse!”: Should The Courts Defer To The Fda’S New Interpretation Of § 360k(A) Of The Medical Device Amendments?, Richard C. Ausness

Law Faculty Scholarly Articles

Under the provisions of the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act certain medical devices are subject to premarket approval of the Food and Drug Administration (FDA). Section 360k(a) of the MDA provides that states may not establish “any requirement” which relates to safety or effectiveness of a medical device and "which is different from, or in addition to" any requirement imposed by the FDA. Until recently, the FDA maintained that § 360k(a) did not preempt most common law tort claims; however, in recent amici briefs, the FDA has aggressively asserted that most, if not all, …

Note, The Standard Of Proof Of Causation In Legal Malpractice Cases, Erik M. Jensen

Faculty Publications

This note argues that the use of a but for standard of causation in legal malpractice cases - i.e., that the plaintiff must show that but for the malpractice he or she would have prevailed in the underlying action - is too stringent, making recovery unreasonably difficult. The note therefore argues for implementation of a lost substantial possibility of recovery standard. This is just a student note, and an old one at that, but a lot of courts and commentators have cited it. In any event, modesty and self-restraint seem to play little role when authors are deciding what to …

The Character Of The Minnesota Tort System, Michael K. Steenson

Faculty Scholarship

The specific focus of this article is whether the Minnesota tort system is progressive. The answer to that question depends on a number of other questions. First, what are the components of the tort system? Second, what are the primary motivating principles of the system? Third, how is the term “progressive” defined for purposes of evaluating the system, and as applied to the tort system, what conclusions does it yield? Other questions might be whether the tort system in Minnesota is liberal, or conservative, or, perhaps, moderate, with the overriding question of whether those labels make any difference.

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

Scholarly Works

The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Book Review: Tom Baker's The Medical Malpractice Myth, Barbara A. Noah

Faculty Scholarship

The Author reviews THE MEDICAL MALPRACTICE MYTH by Tom Baker, published by University of Chicago Press, 2005. Baker’s book confronts the idea that medical malpractice litigation is exploding and underserving plaintiffs and that their attorneys receive unjustified rewards while physicians struggle under the burden of high costs. The book strives to debunk the various aspects of this myth and offers directions for reform. Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform. Baker’s style is concise, lively, and very readable. He effectively weaves …

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

Do Ask And Do Tell: Rethinking The Lawyer’S Duty To Warn In Domestic Violence Cases, Margaret B. Drew, Sarah Buel

Faculty Publications

Empirical data document that while domestic violence victims face high risk of recurring abuse, batterers’ lawyers may be privy to information that could avert further harm. Attorneys owe a duty of confidentiality to their clients that can be breached only in extraordinary circumstances, such as when counsel learns her client plans to commit a crime. To resolve the tension between client confidentiality and victim safety, this Article argues that, in the context of domestic violence cases, lawyers have an affirmative duty to (1) screen battering clients who have indicated a likelihood of harming others, (2) attempt to dissuade them from …

Toxic Torts, Autism, And Bad Science: Why The Courts May Be Our Best Defense Against Scientific Relativism, Joelle A. Moreno

Faculty Publications

No abstract provided.

Intellectual Property: Trade Secrets And The Federal Tort Claims Act/Dd Form 882 Over Substance: Caveat Forfeiture, Katherine E. White

Law Faculty Research Publications

No abstract provided.

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Scholarly Articles

None available.

Cognitive Biases And Heuristics In Tort Litigation: A Proposal To Limit Their Effects Without Changing The World, John E. Montgomery

Faculty Publications

Behavioral studies indicate that individuals do not always make objective decisions about risk. Various cognitive biases and heuristics-- mental shortcuts everyone uses consciously or subconsciously to make decisions under conditions of uncertainty--introduce error and subjectivity. At one level, these studies merely confirm the obvious: individuals make decisions based on both reason and emotions. At another level, they may introduce serious complications into some types of legal analysis, which are based on the assumption that individuals are rational actors. The potential effects of erroneous decisions about risk are of particular concern in the area of tort law. Laboratory studies establish that …

Radke V. County Of Freeborn: The Return Of The Public Duty Rule?, Mehmet K. Konar-Steenberg

Faculty Scholarship

Article explores when Minnesota law provides a cause of action against government actors who are negligent in the performance of their duties. Part II of this Article traces the separate development of the common law public duty rule and the implied statutory cause of action analysis. Part III examines the Hoppe case, where the supreme court seemed to hold that the absence of an implied statutory cause of action precluded the existence of a common law cause of action. Part IV then assesses the Radke court’s effort to resolve the confusion flowing from Hoppe.

Engler V. Illinois Farmers Insurance Co. And Negligent Infliction Of Emotional Distress, Michael K. Steenson

Faculty Scholarship

The rules governing negligent infliction of emotional distress claims differ significantly from state to state. The predominant rule is the bystander recovery rule, which permits recovery by persons who are not physically threatened by the defendant’s negligent conduct but who suffer emotional distress from witnessing injury to a third person. In bystander recovery jurisdictions, the required degree of proximity of the plaintiff to the accident scene, how the plaintiff hears about the accident, the plaintiff’s relationship to the person actually injured in the accident, and the proof required to establish severe emotional distress vary, sometimes significantly, from jurisdiction to jurisdiction. …

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

Americans Abroad: International Educational Programs And Tort Liability, Vincent R. Johnson

Faculty Articles

In recent decades, the number of foreign programs operated by American colleges and universities has greatly expanded. Until recently, there were few reported cases involving claims arising from foreign educational ventures. However, the increase in international study abroad programs has been paralleled by an increase in tort claims. Additionally, because of the tendency of tort cases to be settled, the number of unreported cases, based on harm to students participating in study abroad programs, may be considerably larger than what appears in legal research databases.

Given the high cost of potential litigation, a program provider has no choice but to …

The (Legal) Pains Of Vioxx: Why Product Liability Can Make Products More Dangerous, Omri Ben-Shahar

Articles

Comparing the experience of Vioxx and Celebrex leads Omri Ben-Shahar to think that stiff product liability has the perverse effect of inducing manufacturers of defective products to leave these products on the market, rather than withdraw them.

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who …