Law Commons^™

Summary Of Fanders V. Riverside Resort & Casino, 126 Nev. Adv. Op. No. 50, Bracken Longhurst

Nevada Supreme Court Summaries

An appeal of an Eighth Judicial District Court’s summary judgment in a tort action against a former employer and co-employees based on the exclusivity provisions of the workers’ compensation statutes that arose around the time of employment termination.

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

All Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

Summary Of San Juan V. Psc Industrial Outsourcing, 126 Nev. Adv. Op. 35, Jonathan Winn

Nevada Supreme Court Summaries

The Supreme Court affirmed the district court’s summary judgment ruling in favor of PSC as to third party vicarious liability for the torts of an independent contractor. Specifically, the court held PSC, as hirer of independent contractor DTI, was not liable under the peculiar risk doctrine regardless of whether the independent contractor was incompetent or insolvent.

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Law & Economics Working Papers

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.

The problem is particularly acute for economists. They …

Distributive Justice Through Tort (And Why Sociolegal Scholars Should Care), Anita Bernstein

Faculty Scholarship

No abstract provided.

Reaching Equilibrium In Tobacco Litigation, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal …

Epstein's Razor, David G. Owen

Faculty Publications

Richard Epstein, over a long and distinguished career, has offered inspired insights into how a legal system should be framed to serve the goals of those it governs. In that pursuit, he has relentlessly applied a sharp logic - call it Epstein's Razor - to shave away the detritus of complexity and confusion that surround perplexing problems, leaving standing only truths unscathed by competition among ideas. Over decades of diverse writings on law and political theory, highlighted by his elegant Simple Rules for a Complex World, Professor Epstein offers a vision of law constructed on the view that simplicity in …

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

Summary Of Boorman V. Nevada Memorial Cremation Society And Clark County Coroner’S Office, 126 Nev. Adv. Op. No. 29, David Krawczyk

Nevada Supreme Court Summaries

No abstract provided.

Bending Nature, Bending Law, David Owen

Faculty Publications

No abstract provided.

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein

Cornell Law Faculty Publications

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—it is a mistake to conceive of the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility-component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of …

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Scholarly Works

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

Summary Of Renown Health, Inc. V. Vanderford, 126 Nev. Adv. Op. No. 24, Kristopher Milicevic

Nevada Supreme Court Summaries

Appeal from a district court’s interlocutory order granting partial summary judgment to Vanderford based on the imposition of a nondelegable duty on Renown Health, Inc. The question on appeal was whether a hospital owes an absolute nondelegable duty to provide competent medical care to emergency room patients through independent contractor doctors.

Intent In Tort Law, Keith N. Hylton

Faculty Scholarship

This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In …

Summary Of Strickland V. Waymire, 126 Nev. Adv. Op. No. 25, Keith Pickard

Nevada Supreme Court Summaries

Appeal from a district court summary judgment ordering appellants’ recall elections to proceed based upon a reading of Article 2, Section 9 of the Nevada Constitution whereby any registered voter may sign the recall petition to reach the 25% numerical threshold. The Supreme Court unanimously held that only those voters who actually voted in the election which seated the officials may count toward the 25% threshold.

Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

The three cases on conversion relate to the following issues: the distinction between the tort of conversion and the choice of remedy for purposes of determining the appropriate limitation period, the underlying rationale for conversion that is based essentially on possession of a chattel and finally, the question of whether a temporary certificate of entitlement for the purchase of a car in Singapore may be converted.

Summary Of Betsinger V. D.R. Horton, Inc., Et Al., 126 Nev. Adv. Op. No. 17, Mark Hesiak

Nevada Supreme Court Summaries

An appeal and cross appeal from a jury verdict in favor of prospective home buyer who prevailed in a deceptive trade practice action against a home builder and its financing division.

Insurance In Sociolegal Research, Tom Baker

All Faculty Scholarship

Insurance has a long history in sociolegal research, most prominently as a window on accident compensation and related tort law in action. Recent work has extended that research, with the result that tort law in action may be the best mapped of any legal field outside criminal law. Sociological research has begun to explore insurance as a form of governance, with effects in many legal fields and across the economy. This essay reviews developments in both bodies of work. Part one examines the relationship between liability insurance and tort law in action using the metaphors of window and frame. Part …

Risk, Everyday Intutions, And The Institutional Value Of Tort Law, Govind C. Persad

Sturm College of Law: Faculty Scholarship

This Note offers a normative critique of cost-benefit analysis, one informed by deontological moral theory, in the context of the debate over whether tort litigation or a non-tort approach is the appropriate response to mass harm. The first Part argues that the difference between lay and expert intuitions about risk and harm often reflects a difference in normative judgments about the existing facts, rather than a difference in belief about what facts exist, which makes the lay intuitions more defensible. The second Part considers how tort has dealt with this divergence between lay and expert perspectives. It also evaluates how …

Aggregation, Community, And The Line Between, Elizabeth Chamblee Burch

Scholarly Works

As class-action theorists, we sometimes focus so heavily on the class certification threshold that we neglect to reassess the line itself. The current line asks whether procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Given this symposium’s topic - the state of aggregate litigation and the boundaries of class actions in the decade after Amchem Products, Inc. v. Windsor and Ortiz v. Fibreboard Corp. - the time is ripe to challenge our assumptions about this line in non-class aggregation. Accordingly, this Article examines group cohesion and asks whether the current line is the only dividing …

Summary Of Posas V. Horton, 126 Nev. Adv. Op. No. 12, Amy C. Ma

Nevada Supreme Court Summaries

Appeal from a district court judgment entering a jury verdict in favor of the defendant, where the district court gave the jury sudden-emergency instruction for an automobile collision case.

Summary Of Saylor V. Arcotta, 126 Nev. Adv. Op. 9, Karlee Phelps

Nevada Supreme Court Summaries

The Court held that the district court erred in granting summary judgment and dismissing appellant’s equitable indemnity and contribution claims. Equitable indemnity and contribution claims are governed by statutes of limitation, separate from the statute applicable to the underlying tort. Accordingly, the Court reversed the grant of summary judgment and remanded to the district court for further proceedings.

Measuring The Success Of Bivens Litigation And Its Consequences For The Individual Liability Model, Alexander A. Reinert

Articles

In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U. S. 388 (1971), the Supreme Court held that the Federal Constitution provides a cause of action in damages for violations of the Fourth Amendment by individual federal officers. The so-called "Bivens "cause of action—initially extended to other constitutional provisions and then sharply curtailed over the past two decades—has been a subject of controversy among academics and judges since its creation. The most common criticism of Bivens—one that has been repeated in different venues for thirty years— is that the Court's individual liability model, in …

Bond Limited Liability, Robert J. Rhee

UF Law Faculty Publications

Limited liability is considered a “birthright” of corporations. The concept is entrenched in legal theory, and it is a fixed reality of the political economy. But it remains controversial. Scholarly debate has been engaged in absolute terms of defending the rule or advocating its abrogation. Though compelling, these polar positions, often expressed in abstract arguments, are associated with disquieting effects. Without limited liability, efficiency may be severely compromised. With it, involuntary tort creditors bear some of the cost of an enterprise. Most other proposals for reforming limited liability have been incremental, such as modifying veil piercing. However, neither absolutism nor …

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Cornell Law Faculty Publications

Civil justice issues play a prominent role in society. Family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors are part of the fabric of daily life. Policymakers and interest groups regularly debate and assess whether civil problems are best resolved by legislative action, agency action, litigation, alternative dispute resolution, other methods, or some combination of actions. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice …

Teaching Torts: Rivalry As Pedagogy, Anita Bernstein

Faculty Scholarship

No abstract provided.

Integrity And The Incongruities Of Justice: A Review Of Daniel Markovits, A Modern Legal Ethics, Benjamin C. Zipursky

Faculty Scholarship

Daniel Markovits’ recent book, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age, begins by articulating an ethical quandary common to litigators: how can I advocate zealously for a client whose story might not be true and whose causes might not be just? In Markovits’ hands, the dilemmas of the adversary advocate are transformed into a philosophical puzzle about the nature of integrity and the very idea of fidelity to a client. Lawyers face a far more onerous ethical burden than is sometimes recognized, Markovits argues, for the adversary advocate in our legal system is professionally obligated to lie …

Three Obstacles To The Promotion Of Corporate Social Responsibility By Means Of The Alien Tort Claims Act: The Sosa Court's Incoherent Conception Of The Law Of Nations, The "Purposive" Action Requirement For Aiding And Abetting, And The State Action Requirement For Primary Liability, David A. Dana, Michael Barsa

Faculty Working Papers

The ATCA could be a powerful tool to promote corporate CSR, especially in developing countries where local legal restraints are weak. But despite the good normative reasons why the ATCA should be used in this way, serious obstacles remain. The Supreme Court's ahistorical and incoherent formulation of the "law of nations" fails to promote the development of the ATCA in ways that would cover even serious environmental harm. Also, the federal courts' confused jurisprudence concerning aiding and abetting and state action creates too many loopholes through which egregious corporate behavior may slip unpunished. In order to overcome these obstacles, we …