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1993

Torts

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Full-Text Articles in Law

Resurrecting An Old Cause Of Action For A New Wrong: Battery As A Toxic Tort, Christopher J. Mcauliffe Dec 1993

Resurrecting An Old Cause Of Action For A New Wrong: Battery As A Toxic Tort, Christopher J. Mcauliffe

Boston College Environmental Affairs Law Review

No abstract provided.


Proving Causation In Toxic Tort Cases: T-Cell Studies As Epidemiological And Particularistic Evidence, Elizabeth A. Stundtner Dec 1993

Proving Causation In Toxic Tort Cases: T-Cell Studies As Epidemiological And Particularistic Evidence, Elizabeth A. Stundtner

Boston College Environmental Affairs Law Review

No abstract provided.


Federal Rule Of Evidence 407 As Applied To Products Liability: A Rule In Need Of Remedial Measures, Michele B. Colodney Nov 1993

Federal Rule Of Evidence 407 As Applied To Products Liability: A Rule In Need Of Remedial Measures, Michele B. Colodney

University of Miami Law Review

No abstract provided.


The Constitutionality Of Redlining: The Potential For Holding Banks Liable As State Actors, Joan Kane Nov 1993

The Constitutionality Of Redlining: The Potential For Holding Banks Liable As State Actors, Joan Kane

William & Mary Bill of Rights Journal

No abstract provided.


Tort Reform: An Important Issue For Women, Lucinda M. Finley Oct 1993

Tort Reform: An Important Issue For Women, Lucinda M. Finley

Circles: Buffalo Women's Journal of Law and Social Policy

No abstract provided.


Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr. Oct 1993

Revising Section 402a: The Limits Of Tort As Social Insurance, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.


Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer Oct 1993

Proportional Liability: Statistical Evidence And The Probability Paradox, David A. Fischer

Faculty Publications

Three major policies underlie tort liability: deterrence, compensation, and corrective justice. A primary justification for proportional liability is its alleged superiority in advancing the tort policy of deterrence. This Article demonstrates a significant flaw in this claim by showing that the use of tort liability in multiple cause cases involving statistical evidence in fact serves the policy of deterrence quite poorly.


Law And Economics, Michael J. Trebilcock Oct 1993

Law And Economics, Michael J. Trebilcock

Dalhousie Law Journal

Prior to 1960, most North American law schools paid attention only to anti-trust, public utility regulation, and perhaps tax policy from a law and economics perspective (sometimes referred to as the "old" law and economics). However, beginning in the early 1960's with pioneering articles by Guido Calabresi on tort law and Ronald Coase (the 1991 recipient of the Nobel Prize in Economics) on property rights, followed by prolific writings and a comprehensive text by Richard Posner on a vast range of legal issues, the field of law and economics has burgeoned with many lawyers and economists around the world now …


Negligence, Strict Liability, And Manufacturer Failure To Warn: On Fitting Round Pegs In A Square Hole, Denis W. Boivin Oct 1993

Negligence, Strict Liability, And Manufacturer Failure To Warn: On Fitting Round Pegs In A Square Hole, Denis W. Boivin

Dalhousie Law Journal

In the common law provinces of Canada, it is generally recognized that a plaintiff in a products liability action in tort must prove four elements in order to succeed: first, that the product contains a defect traceable either to its manufacture, to its design, orto its warnings or instructions; second, that the defendant manufacturer was somehow negligent in connection with this defect; third, that there is some causal connection between the manufacturer's negligence and the damages suffered by the plaintiff; and fourth, that these damages are such as to give rise to compensation in law. In the United States, in …


Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes Oct 1993

Texas Bucks The Trend - No Cause Of Action For Lost Chance Of Survival In The Medical Malpractice Context: Kramer V. Lewisville Memorial Hospital, Wayne Barnes

Faculty Scholarship

Jennie Kramer visited her gynecologist in August 1985 complaining of unusual discharges and intermittent bleeding. At that time, her doctor informed her that she tested negative for cancer. Her irregular bleeding continued, but on two subsequent visits to another doctor in November and December, Ms. Kramer was again informed that she did not have cancer. During February of 1986, after continued bleeding, Ms. Kramer detected a hard spot in her vagina. She returned to the second doctor a third time, at which time she was diagnosed with cancer. In spite of subsequent exploratory surgery and chemotherapy, Ms. Kramer died on …


A Cry For Help: An Argument For Abrogation Of The Parent-Child Tort Immunity Doctrine In Child Abuse And Incest Cases, Caroline E. Johnson Oct 1993

A Cry For Help: An Argument For Abrogation Of The Parent-Child Tort Immunity Doctrine In Child Abuse And Incest Cases, Caroline E. Johnson

Florida State University Law Review

No abstract provided.


Tort Liability For Psychiatric Damage, Mitchell Mcinnes Oct 1993

Tort Liability For Psychiatric Damage, Mitchell Mcinnes

Dalhousie Law Journal

One of tort law's great failures is its treatment of claims for psychiatric damage (or, to use a misleading but more popular term, nervous shock'). While a great deal of progress has been made since the days when liability would lie only if a plaintiff also suffered physical injury', or at least reasonably feared for her personal safety3 , the law remains largely unsatisfactory and in need of reform. Illogical and arbitrary rules abound with the result that worthy claimants are often denied compensation. Recent attempts at clarification and rationalization by the House of Lords4 and the High Court of …


An Employer's Guide To Protecting Trade Secrets From Employee Misappropriation, Derek P. Martin Sep 1993

An Employer's Guide To Protecting Trade Secrets From Employee Misappropriation, Derek P. Martin

BYU Law Review

No abstract provided.


Robinson Crusoe Torts, Carl M. Sellinger Sep 1993

Robinson Crusoe Torts, Carl M. Sellinger

West Virginia Law Review

No abstract provided.


A Model Of Products Liability Reform, Anita Bernstein Jul 1993

A Model Of Products Liability Reform, Anita Bernstein

Faculty Scholarship

No abstract provided.


Braun V. Soldier Of Fortune Magazine, Inc.: Advertisement For Hit Man Brings Four Million Dollar Hit To Publisher, Mae Charles Babb Jul 1993

Braun V. Soldier Of Fortune Magazine, Inc.: Advertisement For Hit Man Brings Four Million Dollar Hit To Publisher, Mae Charles Babb

Mercer Law Review

In Braun v. Soldier of Fortune Magazine, Inc., the Eleventh Circuit affirmed a district court's holding that the First Amendment does not insulate a magazine publisher from liability for publishing a commercial advertisement that presents a substantial danger of harm to the public. In adopting this affirmative duty to examine an advertisement's language, the court imposed tort liability on Soldier of Fortune Magazine ("SOF") for the criminal acts of its advertiser, a third party not joined in the suit. This decision strikes the correct balance between preserving the free flow of commercial information through advertisement with the need to …


Book Review, Lisa M. White Jun 1993

Book Review, Lisa M. White

RISK: Health, Safety & Environment (1990-2002)

Review of: STUART M. SPEISER, LAWYERS AND THE AMERICAN DREAM. (Evans 1993) [430 pp.] Endnotes with full citations, index, and lexicon (lay definitions of legal terms). LC 93-35272; ISBN 0-87131-724-9. [$16.95 paper. 216 E. 49th Street, New York NY 10017.]


Two Immediate Causes Of Action For West Virginians Exposed To Toxic Substances: Medical Surveillance And Emotional Distress Damages, Andrew J. Katz Jun 1993

Two Immediate Causes Of Action For West Virginians Exposed To Toxic Substances: Medical Surveillance And Emotional Distress Damages, Andrew J. Katz

West Virginia Law Review

No abstract provided.


Who Pays In The End For Injury Compensation - Reflections On Wealth Transfers From The Innocent, Alfred F. Conard May 1993

Who Pays In The End For Injury Compensation - Reflections On Wealth Transfers From The Innocent, Alfred F. Conard

San Diego Law Review

This Article recognizes that the people who actually pay for tort judgments are generally not the wrongdoers, but the enterprises that have employed or insured the tortfeasors, or purveyed the faulty products. The enterprises then recover their expenditures by charging higher prices to their consumers, or by reducing the benefits that they confer on investors, workers, and the general public. The consumers, the workers, the public, and the investors are the innocent human beings who contribute to paying for tort judgments. This Article addresses what kinds of losses justify forcing the innocent to contribute, and suggests reforms that seem to …


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: A Timely Call For Punitive Damages Reform, Victor E. Schwarz, Mark A. Behrens

San Diego Law Review

This Article focuses on the Reporters' Study on Enterprise Responsibility for Personal Injury, specifically the Reporters' recommendations for punitive damages reform. The Article discusses the Study's analysis of the need for punitive damages reform, with which the author agrees. The Article also discusses the Study's recommendations concerning reform of the standard by which punitive damages should be awarded, recommendations to set reasonable limits on the size of punitive damage awards, and the recommendation of a shield against punitive damages for products that comply with federal regulatory standards. The authors find that generally the recommendations are fair and reasonable. They believe …


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Reforming The Tort System May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Reforming The Tort System

San Diego Law Review

In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of each volume …


The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Perspectives On The Tort System And The Liability Crisis May 1993

The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury: Perspectives On The Tort System And The Liability Crisis

San Diego Law Review

In 1986 a number of prominent legal scholars embarked upon a project commissioned by the American Law Institute to re-examine contemporary tort and personal injury law. Five years later, the results of this project came to fruition in a two-volume study entitled Reporters' Study on Enterprise Responsibility for Personal Injury. After a year's debate within the American Law Institute about the broad range of issues canvassed by the Study, the Institute's Executive Council endorsed the value of the Study for deliberations about tort reform going on in both legislative and judicial forums. This is the introductory chapter of each volume …


An Ali Report Markets A Defective Product: Errors At Retail And Wholesale, Marshall S. Shapo May 1993

An Ali Report Markets A Defective Product: Errors At Retail And Wholesale, Marshall S. Shapo

San Diego Law Review

This Article analyzes a chapter in the Reporters' Study on Enterprise Responsibility for Personal Injury, the chapter titled "Product Defects and Warnings." The author is highly critical of the Study, noting its lack of depth of historical focus, its failure to take existing doctrine with sufficient seriousness, and its deficiencies in both terminology and analysis. The author argues that the Study fails to give sufficient weight to competing points of view, and that it consistently fails to present specific and relevant applications. The author concludes that the Study itself is a defective product.


Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips May 1993

Comments On The Reporters' Study Of Enterprise Responsibility For Personal Injury, Jerry J. Phillips

San Diego Law Review

This Article critiques the substantive law and damage proposals of the Reporters' Study on Enterprise Liability, which was published in 1991 by the American Law Institute. Contrary to the Reporters' recommendations, the author proposes retaining the consumer expectations test and strict liability for product suppliers. He argues that it is not practical to shift medical malpractice liability, as proposed by the Study, from doctors to hospitals. In the area of damages, the author proposes retaining the rules of recovery for pain and suffering, punitive damages, and the collateral source rules essentially as they are now, instead of adopting the changes …


Enterprise Responsibility For Personal Injury: Further Reflections, Kenneth S. Abraham, Robert L. Rabin, Paul C. Weiler May 1993

Enterprise Responsibility For Personal Injury: Further Reflections, Kenneth S. Abraham, Robert L. Rabin, Paul C. Weiler

San Diego Law Review

This Article, written by three contributors to the Reporters' Study on Enterprise Responsibility for Personal Injury, offers further reflections about specific areas and proposals in the Study that have evoked important questions and comments. It addresses the concern that there are too many lawyers and lawsuits in the United States, and that it is this overpopulation of lawyers that is causing excessive tort litigation. It also addresses high damage awards and insurance premiums, it recommends refining products liability, and recommends organizational responsibility for medical malpractice. This Article is a supplement to the Study, and offers further examination of important issues …


A Lost Opportunity: A Review Of The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Chad M. Oldfather May 1993

A Lost Opportunity: A Review Of The American Law Institute's Reporters' Study On Enterprise Responsibility For Personal Injury, Jeffrey O'Connell, Chad M. Oldfather

San Diego Law Review

This is a critical analysis of the Reporters' Study on Enterprise Responsibility for Personal Injury. Although recognizing that the Study is comprehensive and well researched, the authors express disappointment at the lack of vision contained in the Study. They find that the authors of the Study failed to find their way out of the maze of the tort system, and in exploring so many nooks and crannies they become lost in the details, rather than looking at the big picture. The authors of this Article provide a brief overview of the Study, and proceed with analysis. They conclude that the …


Rejoinder: Advances In The Analysis, Marshall S. Shapo May 1993

Rejoinder: Advances In The Analysis, Marshall S. Shapo

San Diego Law Review

This brief Rejoinder addresses two levels of issues: broad questions involved in the effort to establish a critical overview of injury law and questions more precisely bound up with products liability law. The author lauds the Reporters' Study on Enterprise Responsibility for Personal Injury on its significant contribution to academic debate in this country, and for its openness to a competition of many divergent ideas in the context of organizational culture. Despite the problems that this author noted in his first Article in this symposium, he recognizes the achievement of the Study, and the genuine advance that it provides in …


Lackey V. Mcdowell: The Effect Of Releases On Non-Parties Under Georgia Law, Roland F. Hall May 1993

Lackey V. Mcdowell: The Effect Of Releases On Non-Parties Under Georgia Law, Roland F. Hall

Mercer Law Review

In Lackey v. McDowell, the Supreme Court of Georgia modified *its previous decisions on the effect of a release on non-parties to the release. In reversing the court of appeals, the court held that "only those parties named in the release will be discharged by that instrument." Previous decisions required that parties to a release had to intend to discharge the non-party seeking coverage under the release.

For plaintiffs attempting to release only one of several tortfeasors, the effect of releases on non-parties is a critical issue, especially since standard release forms commonly contain language purporting to discharge all …


The Constitutionality Of State Allocation Of Punitive Damage Awards, Paul F. Kirgis Apr 1993

The Constitutionality Of State Allocation Of Punitive Damage Awards, Paul F. Kirgis

Faculty Law Review Articles

This Note analyzes state allocation in light of these differing approaches. The constitutional analysis of Part II begins with a discussion of Takings Clause issues presented by the former "appropriation" approach. This section suggests some flaws in that approach and some reasons why courts might mistakenly adopt it. Part II then examines the criminal law protections embodied in the Excessive Fines and Double Jeopardy Clauses and evoked by the latter "civil penalty" approach. Next, Part III argues for specific statutory adoption of the civil penalty approach and discusses the practice and policy issues that that approach presents. Finally, an Appendix …


Constitutional Law—Punitive Damages—Arkansas' Common Law Method Of Awarding Punitive Damages May Violate Due Process. Viking Insurance Co. V. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992)., Penny Brown Wilbourn Apr 1993

Constitutional Law—Punitive Damages—Arkansas' Common Law Method Of Awarding Punitive Damages May Violate Due Process. Viking Insurance Co. V. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992)., Penny Brown Wilbourn

University of Arkansas at Little Rock Law Review

No abstract provided.