Law Commons^™

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 …

Torts In Verse: The Foundational Cases, R. Perry Sentell Jr.

Scholarly Works

This Article contains a "verse," "rhyme," or "poem" for each of the truly foundational cases ordinarily studied in first year Torts. The arrangement assumes a typical Torts casebook's order of presentation, but is fairly flexible. Each entry initially sketches the selected case's significance to the body of Tort law and then follows with the verse. The "rhymes" themselves are admittedly (indeed, intentionally) contrived and pedantic, seeking to elicit groans--but hopefully groans of recognition and familiarity. Ideally, the student will most "enjoy" a verse while reading and studying the case itself; indeed, some verse references make little sense otherwise.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

Balancing Interests: Statute Of Limitations And Repose In Medical Malpractice Cases, Laurie L. Paterson

LLM Theses and Essays

In the 1970s a crisis occurred in the medical malpractice insurance industry. As tort law began to favor plaintiffs, the number and severity of medical malpractice claims increased. Insurance companies inundated with a deluge of claims correspondingly increased their premiums or pulled out of the malpractice insurance industry all together. Some physicians were unable to obtain medical malpractice insurance and others were faced with as much as a 300% rise in insurance premiums. As a result, the medical profession urged states to enact medical malpractice tort reform. Some states’ tort reform included legislation such as award caps, collateral source offset, …

Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton

Scholarly Works

This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.

Another Brick In The Wall: An Empirical Look At Georgia Tort Litigation In The 1990s, Thomas A. Eaton, Susette M. Talarico, Richard E. Dunn

Scholarly Works

It has been four years since we prepared our first profile of tort litigation in Georgia.

It is against this backdrop that we undertook to update and expand upon our original research. We have updated our study by collecting data from tort cases filed in the superior courts of Bibb, Gwinnett, Irwin, and Oconee counties between 1994 and 1997. Thus, for these four counties we now have data regarding the filing and disposition of tort cases for an eight-year period. We also have collected data from tort cases filed in Cobb and Fulton County superior courts between 1994 and 1997. …

Tort Claims Against The State: Georgia's Compensation System, R. Perry Sentell Jr.

Scholarly Works

The State's immunity from liability for the torts of its officers and employees claims legendary status in American law. Indeed, immunity's history now looms as daunting as the doctrine itself. As with most epochal accounts, this history varies according to version--versions, assuredly, for many tastes. In sum, nevertheless, the offerings attest to a legal principle persisting as (at least) the point of departure in most jurisdictions. Anchored in both history and rationale, therefore, state tort immunity long dominated the law of the United States. Over time, indeed, the doctrine's durability proved unequal only to that of its critics. Those critics …

Civil (Tort) Litigation: The Search For Data Continues, Thomas A. Eaton

Scholarly Works

What do we "know" about tort litigation in Georgia? How many tort suits are filed? What kinds of cases are filed? How many settle and how many go to trial? Do jurors tend to rule in favor of one party or the other? What are the typical damages awarded in cases in which the plaintiff prevails? How often are punitive damages awarded?

A Profile Of Tort Litigation In Georgia And Reflections On Tort Reform, Thomas A. Eaton, Susette M. Talarico

Scholarly Works

Fact-based studies of tort litigation in Georgia are almost nonexistent. Georgia is one of many states that does not provide the NCSC with any information regarding tort litigation patterns. Georgia does not provide such information because it is not compiled. It is not compiled because these data are not systematically maintained by local courts and reported to the Administrative Office of the Courts. Because the data are not routinely collected and reported, it is impossible to answer such elementary questions as: How many tort cases are filed in Georgia courts? What types of claims are brought? How many go to …

Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells

Scholarly Works

Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.

The Georgia Jury And Negligence: The View From The Trenches, R. Perry Sentell Jr.

Scholarly Works

This is the third part of a project devoted to analyzing the Georgia negligence jury. The project employed as its original point of departure the extensive Chicago Jury Study of the 1960s, directed by Chicago Law Professor Harry Kalven, Jr. That Study's immortality derives principally from its famous first premise: Meaningful evaluation of the jury system must originate from within the system itself. That premise propelled Professor Kalven through a massive national survey of trial judges. The judges' responses, under Kalven's insightful analysis, yielded an unprecedented profile of the American jury. In foundational fashion, those responses indelibly etched into legal …

Mindlessness And Nondurable Precautions, Paul J. Heald

Scholarly Works

Assuming initially that negligence law does not make the distinction between durable and nondurable precautions, this Article will first explain in economic terms why the failure of courts to take into account the cost of remembering may nonetheless be efficient. A substantial body of research on the phenomenon of mindless decisionmaking ("scripting") suggests that most remembering is automatic--a nonconscious response to frequently encountered patterns of stimuli. Script theory suggests that once the behavioral script is in place, an automatic response operates at a very low cost. If so, the failure of courts to account for the cost of remembering would …

The Georgia Jury And Negligence: The View From The (Federal) Bench, R. Perry Sentell Jr.

Scholarly Works

This is the second part of a two-part inquiry into the quality of jury performance in Georgia negligence cases. Evaluation begins from within. That is an especially prominent truth in respect to the trial of negligence cases. The lay-professional partnership composing the civil trial system is unique. the professional's continuity provides a point of perfect perspective on the transient lay component--both its capacity and its performance. If the professional will share that perspective, it can structure a benchmark for foundational appraisal. To their great credit, the state and federal trial judges of Georgia are unstinting in assisting to construct that …

Scientific Policymaking And The Torts Revolution: The Revenge Of The Ordinary Observer, Michael Wells

Scholarly Works

My argument will make heavy use of a distinction, introduced by Professor Bruce Ackerman, between two styles of reasoning in addressing legal issues. One is the perspective of the "Ordinary Observer," who begins his analysis by looking at the common practices of laymen and makes legal rules based on the expectation of a well-socialized member of society, without regard to whether the resulting body of law fits into any coherent pattern. Ackerman contrasts this method with that of the "Scientific Policymaker," who begins from the premise that the law should serve some goal or small group of goals and who …

The Georgia Jury And Negligence: The View From The Bench, R. Perry Sentell Jr.

Scholarly Works

It is virtually impossible to think seriously about torts and not think of negligence; it is virtually impossible to think seriously about negligence and not think of the jury. The staples of the common-law negligence system--striking a liability profile, and assessing a causal loss--are the staples of the civil jury province. The historic inevitableness of the fact, however, has never put the matter beyond reflection, scrutiny, reconsideration, challenge, nor controversy. Assuredly, controversy.

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

Scholarly Works

The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

Res Ipsa Loquitur And Medical Malpractice In Georgia: A Reassessment, Thomas A. Eaton

Scholarly Works

Part II of this Article addresses the threshold issue of when a court may consider a medical accident as one that ordinarily does not occur in the absence of negligence. This part criticizes the blanket rejection of res ipsa loquitur in Georgia malpractice opinions. Judicial hostility toward res ipsa loquitur in these cases is based in large part on a misunderstanding of the so-called presumption of due care. This part then explains how an inference of negligence may be harmonized with traditional fault-based malpractice doctrine. Finally, this part addresses judicial concerns about the sufficiency of evidence. It is argued that …

Georgia Local Government Officers: Rights For Their Wrongs, R. Perry Sentell Jr.

Scholarly Works

Responsibility for damage caused by the misconduct of local government officers and employees has long been a concern of the law and of legal observers. According to most accounts, Anglo-American law historically has responded with two diverse rules: immunity for the governments, and liability for the official; both, however, are only points of departure. Although both rules are well established, each carries its own qualifications and the precise relationship between the two is a matter of some controversy.

Personal Liability Of State Officials Under State And Federal Law, Charles R. Mcmanis

Scholarly Works

The common law rule of governmental immunity made governments immune from suit and held public officials personally liable for the torts they committed in the performance of their duties. In recent years, however, the law of tort liability has moved toward the increased immunity of governmental officials and employees and the increased liability of governmental units. In this Article Professor McManis first outlines the notion of sovereign immunity, following with an analysis of the nature and the scope of the immunity afforded governmental official sunder federal and state law, with a particular emphasis on the law of Georgia. The author …

Georgia Municipal Tort Liability: Ante Litem Notice, R. Perry Sentell Jr.

Scholarly Works

Time and again the Georgia courts have spoken on the meaning of various phrases in the notice-of-claim statute, or, as they popularly refer to it, the "ante litem notice" statute. During the last three or four years, the judiciary's activity has been particularly concentrated. Grappling with questions of first impression, changing approaches to interpretation, or confirming prior positions, their decisions must now be understood as a part of the statute itself. What follows is simply a brief effort to summarize this recent judicial activity, hopefully in an orderly fashion. If the traveler is thereby aided in updating his map, the …

Georgia's New Statutory Liability For Manufacturers: An Inadequate Legislative Response, E. Hunter Taylor Jr.

Scholarly Works

During its 1968 session the Georgia Legislature passed a bill intending to create a right of action in tort, independent of negligence, in favor of consumers, users or other foreseeably affected parties against manufacturers of defective products. While Georgia has been in need of judicial or legislative action in this realm, it is the author's thesis that the recently enacted statute is unsatisfactory and should be redrafted. The purpose of this article is as follows: (1) to describe and trace historically the problems which have been encountered in providing legal protection to the individual for injury caused by defective goods; …