Law Commons^™

The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato

Scholarly Articles

Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law.

The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin Roger Scordato

Scholarly Articles

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate. In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation …

Reconstructing Malice In The Law Of Punitive Damages, Marc O. Degirolami

Scholarly Articles

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal …

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith Ii, William P. Lane

Scholarly Articles

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …

"Should" Or "Must"?: Distinguishing Mandates From Guidelines In Tort Claims Contexts, A.G. Harmon

Scholarly Articles

This Article intends to bring some order to the discussion, both by

means of explaining what the science of the language arts—linguistics—says

about the matter, and by explaining how that science comports with what courts

think they are doing when they determine a government statement is, or is not,

a mandate. Linguists have considered language crimes before, relating to

perjury, bribery, and criminal threats, and I myself have conducted a linguistic

analysis with regard to the civil law Tarasoff context (i.e., “duties to warn”),

but a linguistic analysis of mandates as opposed to guidelines has not yet been

attempted.

Part …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege, A.G. Harmon

Scholarly Articles

Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to "private figure" plaintiffs when a qualified, or "conditional," privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a …

Innocent Threats, Concealed Consent And The Necessary Presence Of Strict Liability In Traditional Fault-Based Tort Law, Marin Roger Scordato

Scholarly Articles

This article identifies and carefully analyzes the use in tort law of what is termed unilateral and bilateral legal analysis. Unilateral, or one-party, analysis involves the design of legal doctrine that is focused on the characteristics or status of a single legal person. It is traditionally associated with criminal law, where the doctrinal attention is tightly focused on the criminal defendant. Inquiry may be made regarding the nature and degree of harm suffered by the victim, or whether the victim agreed to the harm producing act, but these considerations are generally relevant only to the degree that they shed light …

Understanding The Absence Of A Duty To Reasonably Rescue In American Tort Law, Marin Roger Scordato

Scholarly Articles

The absence in American tort law of a duty to reasonably aid a stranger in peril is perplexing. It is an odd gap in the otherwise nearly pervasive presence of a duty of reasonable care in the modern law of negligence. It utterly fails to accurately articulate our conventional sense of morality and appropriate social behavior. It stands in stark contrast to the treatment of this issue throughout the rest of the world. It is a rule of tort law for which very few commentators have had a kind word.

This Article sets forth a spirited defense of the traditional …

Post-Realist Blues: Formalism, Instrumentalism, And The Hybrid Nature Of Common Law Jurisprudence, Marin Roger Scordato

Scholarly Articles

At the beginning of the twentieth century, it was widely believed that appellate courts determined the outcome of disputed issues of law predominately by the application of pre-existing precedent and time honored legal maxims. The primary work of the common law courts was thought to be this distinctive identification, maintenance, inductive development and case specific deductive application of the body of precedent in its jurisdiction, sometimes known as formalism.

Starting with the influence of the legal realists in the 1920s, a profound shift took place in the dominant conception of the nature of common law jurisprudence. Here, at the beginning …

The International Legal Environment For Serious Political Reporting Has Fundamentally Changed: Understanding The Revolutionary New Era Of English Defamation Law, Marin Roger Scordato

Scholarly Articles

On October 11, 2006, Britain's highest court, the House of Lords, issued a blockbuster ruling that completely changed the landscape of libel law and press freedoms in the United Kingdom. The Times of London described the case, Jameel v. Wall Street Journal, as, "a judgment that lawyers predict will usher in a new era of journalism." Given England's reputation as an attractive jurisdiction for defamation plaintiffs and a frequent destination for "libel tourism," this case is likely to alter the environment for serious political journalism throughout Europe and North America.

This article carefully describes the case, including its key holdings …

The Ninth Circuit’S Invasion Of The Tort Of Invasion Of Privacy, Harvey L. Zuckman

Scholarly Articles

The tort of invasion of privacy has had a short but tortuous development made even more tortuous by a number of recent rulings by the United States Court of Appeals for the Ninth Circuit. This common law tort does not begin with the normal judicial iterations that created and sculpted other torts. Rather, it began life as a law review article prompted by personal pique.

Rethinking Sullivan: New Approaches In Australia, New Zealand And England, Susanna Frederick Fischer

Scholarly Articles

This Article employs a comparative analysis of some important recent Commonwealth libel cases to analyze what has gone wrong with U.S. defamation law since New York Times v. Sullivan and to suggest a new direction for its reform. In Lange v. Australian Broadcasting Corporation, Lange v. Atkinson, and Reynolds v. Times Newspapers, the highest courts of the Australian, New Zealand, and English legal systems were confronted with the same challenge faced by the U.S. Supreme Court in New York Times v. Sullivan. They had to decide the proper constitutional balance between protection of reputation and protection …

When Can The Government’S Misrepresentations Give Rise To A Constitutional Tort?, Antonio F. Perez

Scholarly Articles

Can allegations that senior State Department and National Security Council officials failed to inform a U.S. citizen that her foreign citizen husband was in foreign custody suffice to allege a denial of access to the courts in violation of the Fifth Amendment so as to give rise to a constitutional tort even absent any allegation that the plaintiff tried to file a lawsuit or was actually hindered in doing so?

If so, was that right clearly established as of the time of the government officials' conduct so as to defeat a defense of qualified immunity?

Federal Preemption Of State Tort Claims, Marin Roger Scordato

Scholarly Articles

This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions.

Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court's docket for many …

The Global Implications Of Defamation Suits And The Internet: The U.S. View, Harvey L. Zuckman

Scholarly Articles

No abstract provided.

The New Federalism And The Ada: State Sovereign Immunity From Private Damage Suits After Boerne, Roger C. Hartley

Scholarly Articles

State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment's Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational assumptions based on myths, fears and stereotypes. Unlike most other civil rights statutes, the Americans With Disabilities Act (hereinafter "ADA" or "Act") prohibits both prejudice and thoughtlessness and aptly has been characterized as a "second-generation civil rights statute."

Unfortunately, the ADA's claim to innovation might yet prove to be its constitutional Achilles heel. Across the …

Developments In Liability Theories And Defenses, Robert A. Destro

Scholarly Articles

Litigators with experience in the field of religious liberty believe that courts do not seem to take religious liberty claims and defenses very seriously; however, it is difficult to know why. To be sure, the anecdotal evidence is certainly there, not only in the reported cases, but also in the actual courtroom experiences of those who attempt to raise religious liberty claims and defenses. In one Texas tort case, a trial court judge stated that she would not permit the Church "to hide behind the first amendment;" in a Maryland case a number of years ago, I was asked by …

Aesthetic Nuisance: Re-Educating The Judiciary, George P. Smith Ii

Scholarly Articles

This article discusses how the traditional common-law refusal to grant relief for an aesthetic nuisance has been eroded by various case decisions. The author suggests an “average person” standard for the judiciary to follow for recognizing an aesthetic nuisance.

Nuisance Law: The Morphogenesis Of An Historical Revisionist Theory Of Contemporary Economic Jurisprudence, George P. Smith Ii

Scholarly Articles

The debate over the scope of the concept of reasonableness - its application and use in testing the legality of normative conduct - is of long standing. Recently, it has been suggested that reasonableness be substituted for both legal and moral rightness. I go further in this Article and suggest reasonableness incorporates the goal of economic efficiency and that it is tested or shaped by a simple cost-benefit model that has its legal etiology in the equitable principle of balancing that, in turn, has its roots in the principle of Sic utere tuo ut alienum non laedas, or So use …

Tort Claims In Counterinsurgency Operations: The British Experience In Ireland, 1919–21, Michael F. Noone Jr.

Scholarly Articles

No abstract provided.

The Price Of Beauty: An Economic Approach To Aesthetic Nuisance, George P. Smith Ii, Griffin W. Fernandez

Scholarly Articles

This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of …

Invasion Of Privacy: Some Communicative Torts Whose Time Has Gone, Harvey L. Zuckman

Scholarly Articles

Because invasion of privacy developed from a late nineteenth century law review article motivated in large part by personal animus against the "yellow" press of the era rather than through traditional incremental common-law decision making, and because it has no central trunk but rather four disparate branches whose supposedly protected interests are subject to debate,' this complex of torts presents numerous operational problems for our judicial system. Constitutional problems are created as well by the generation of tension if not direct conflict with first amendment interests when civil liability is imposed for certain kinds of communication. And if all this …

The American Torts Of Invasion Of Privacy: Substantial Corruption Of English Common Law, Harvey L. Zuckman

Scholarly Articles

No abstract provided.

There Is Tort Liability For Negligent Programming, Harvey L. Zuckman

Scholarly Articles

No abstract provided.

The Federal Medical Care Recovery Act, Michael F. Noone Jr.

Scholarly Articles

Until the passage of the Federal Medical Care Recovery Act, which became effective in 1963, the

Federal Government was not able to recover the expense of medical services extended to one who was entitled to those services when the injury was caused by the negligence of a third-party tortfeasor. The act now gives the Government the right to join in the suit of the injured party or to proceed on its own. Through co-operation with the injured parties' attorneys, the Government has recouped millions of dollars.

May Plaintiffs Include The United States Claim Under The Federal Medical Care Recovery Act Without Government Intervention?, Michael F. Noone Jr.

Scholarly Articles

Soon after the inception of the Hospital Recovery Claims Program, Government agencies concluded that the most effective means of asserting and collecting claims under the provisions of 42 U.S.C. 2651-3 would be through the injured party's attorney. Since approximately 95% of all person injury claims are settled prior to trial, the question of who could sue if the claim could not be settled amicably remained unresolved. At the end of the first year all agencies were advised to request the plaintiff's lawyers to include the Government's claim as an item of special damages if suit were filed. Within a few …