Law Commons^™

What Happened To No-Fault? The Role Of Error Reporting In Healthcare Reform, Henry Y. Huang, Farzad Soleimani

Henry Y Huang

No-fault systems for compensating medical injuries offer theoretical advantages over tort-based malpractice litigation, but may not actually reduce medical error rates or costs in practice. Surveys of doctors in the United States, a tort-based system, and New Zealand, a no-fault system, show that physicians across both systems share similar concerns about error reporting. These results suggest that error reporting, instead of simple cost reduction, should play a central role in no-fault compensation systems, which would reduce mistakes, improve quality going forward, generate feedback to physicians, and provide the public with greater information about their healthcare providers.

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

Big-Box Bullies Bust Benign Buyer Behavior: Wal-Mart, Get Your Hand Off My Receipt!, Victoria S. Salzmann

Victoria S. Salzmann

This Article is a critical analysis of “big-box” store policies that force consumers to hand over their receipts before they are permitted to leave. I argue that, at least in the tort context, the economic power of retail stores has grown beyond the limiting power of the law. To support this theory, I consider a practice I show to be unlawful under settled tort law—store demands for customer receipts. Considering this illegal practice against other unchecked illegalities performed by the superstores, I theorize that economic power is replacing the law as the personal liberty safeguard.

"Negligence In The Air?" Should "Alternative Liability" Theories Apply In Lead Paint Litigation?, Richard O. Faulk, John S. Gray

Richard Faulk

This article examines various theories of alternative liability and the circumstances, policies and limitations under which they were created and expanded. It then specifically examines the application of “market share” liability to the manufacturers of lead pigment currently being sued by governmental entities under theories of public nuisance. Finally, it demonstrates how these theories are unworkable in the context of the lead paint public nuisance litigation. Viewed in the proper perspective, it is time to stop the descent of American jurisprudence down the “slippery slope” of alternative liability—lest the uncontrolled descent lead to a precipitous fall into an irrational and …

Order Out Of Chaos: Products Liability Design Defect Law, Dominick Vetri

Dominick Vetri

Products liability design defect law appears to be in a state of disorder. All of the different design defect tests used by the state courts give the appearance of chaos in American products liability law. The states have failed to develop a strong consensus on a legal test for design defect. It is, of course, an exaggeration to say that there are as many different legal tests for design defect as there are states, but in a world in which products are routinely shipped in foreign and interstate commerce, there is a need for more uniformity than we have. Fortunately, …

The Emergent Logic Of Health Law, Maxwell Gregg Bloche

Maxwell Gregg Bloche

The American health care system is on a glide path toward ruin. Health spending has become the fiscal equivalent of global warming, and the number of uninsured Americans is approaching 50 million. Can law help to divert our country from this path? There are reasons for deep skepticism. Law governs the provision and financing of medical care in fragmented and incoherent fashion. Commentators from diverse perspectives bemoan this chaos, casting it as an obstacle to change. I contend in this article that pessimism about health law’s prospects is unjustified, but that a new understanding of health law’s disarray is urgently …

What Do You Do With A Drunken Sailor? Reprehensibility, The Exxon Valdez And Punitive Damages, Charles S. Doskow

Charles S Doskow

Under the Supreme Court's due process analysis of the constitutionality of punitive damage awards, in the BMW and State Farm cases, reprehensibility is the first factor considered. The Ninth Circuit's opinion in the Exxon Valdez oil spill case contains a detailed analysis of the elements of reprehensibility. The Supreme Court, on appeal of the Ninth Circuit's decision upholding punitive damages of $2.5 billion, avoided constitutional analysis and applied maritime law. The Court limited punitive damages to the amount of compensatory damages, a 1:1 ratio. Whether this standard will be applied outside the maritime area, to future awards evaluated under due …

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

Alexandra B. Klass

This Article considers the broad range of “tort experiments” states have undertaken in recent years as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, as states have engaged in well-publicized tort reform efforts in the products liability and personal injury areas, they have also increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, just as the Supreme Court was beginning its so-called “federalism revolution” of the 1990s to limit Congressional authority in the name of states’ rights, …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Jacqueline D Lipton

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated? While much digital privacy law and commentary has focused on text files containing personal data, little attention …

The Tort Of Negligence Or The State-Created Danger: Two Avenues For School Liability In The Case Of The Injured Student Informant, Michele H. Berger

Michele H Berger

Schools use students as the watchdogs of the school to report to authorities about drugs and weapons possession. There is a lack of liability assigned to schools for placing students in this inherently dangerous situation. If it is absolutely necessary for high schools to use students as informants, courts should charge schools with an affirmative duty to protect student informants.

Where there is a duty, there is the potential to breach that duty, thus exposing the school to liability for negligence. So long as that breach of a duty causes an injury to the plaintiff through cause in fact, proximate …

The Social Cost Of Dangerous Products: An Empirical Investigation, Sidney A. Shapiro, J. Paul Leigh, Ruth Ruttenberg

Sidney A Shapiro

The debate over far reaching changes in the common law of torts has produced a number of empirical studies focused on the operation of the tort litigation system. None of these studies, however, offers a sufficient measurement of the value of the tort system when it deters the sale of consumer products that are defective under the relevant common law product liability standards. Our study directly estimates the cost of injuries and fatalities attributable to three dangerous products: Ford SUV’s with Firestone tires, the pharmaceutical drug Baycol, and All Terrain Vehicles (ATVs) with three wheels and discusses the implications of …

When Patients Say No (To Save Money): An Essay On The Tectonics Of Health Law, Mark A. Hall

Mark A Hall

Our principal task in this essay is to show how the three principle parts of health law -- malpractice, bioethics, and health care finance -- are colliding in ways that will require adjustments in legal doctrine. These parts are like neighboring tectonic plates, either with their own central purposes and basic assumptions. For years each part developed quite independently. Recently, however, public policy increasingly has moved the plates into tension, producing seismic potential that has been largely unnoticed. We demonstrate this through a case study of one tectonic encounter -- a patient who says no to standard-of-care treatment because of …

Mortgage Fraud And The Deliberate Ignorance Jury Instruction: The Risk Of Criminal Liability For Real Estate Professionals Involved In Civil Litigation, William Z. Duffy

William Z Duffy

Those involved in the purchase or sale of real estate risk becoming entangled in a scheme to defraud a financial institution. These individuals can include the escrow agent, mortgage broker, realtor, seller, appraiser and developer. In many instances, criminal charges related to the alleged fraud will be preceded by a civil lawsuit initiated by the lending institution against the perpetrators of the fraud and anyone else connected to the transaction. When evaluating these cases, civil counsel should be aware that government prosecutors will argue that “red flags” alerted the defendant to the fraud, but the defendant purposefully closed his eyes …

The Mouse Roars! Rhode Island High Court Rejects Expansion Of Public Nuisance, Richard O. Faulk, John S. Gray, Thomas R. Bender

Richard Faulk

On July 1, 2008, the Supreme Court of Rhode Island, the smallest state in the nation, gave a loud and mighty roar as it joined the chorus of high courts rejecting attempts to expand the use of the law of public nuisance as a means to sue manufacturers of lawful products. In so ruling, the court acted consistently with the traditional role of judges presiding over common law controversies, and joined a growing list of other state supreme courts that have refused to enlarge the boundaries of this ancient tort.

The Cleaver, The Violin And The Scalpel: An Essay On Duty And The Third Restatement Of Torts, Aaron D. Twerski

Aaron D. Twerski

The article takes issue with the approach taken by Third Restatement of Torts Proposed Final Draft that insists that no-duty or limited duty rules should be formulated only when a court can promulgate clear , categorical , bright-line rules that are applicable to a general class of cases. In this article I demonstrate that no-duty rules may often have to be formulated and tailored to the facts of a specific case. I respond to the critics who are concerned that no-duty rules that are fact specific allow the court to invade the province of juries whose task it is to …

The Ghost In Our Genes: Legal And Ethical Implications Of Epigenetics, Gary E. Marchant, Mark A. Rothstein, Yu Cai

Gary E. Marchant

Epigenetics is one of the most scientifically important, and legally and ethically significant, cutting-edge subjects of scientific discovery. Epigenetics link environmental and genetic influences on the traits and characteristics of an individual, and new discoveries reveal that a large range of environmental, dietary, behavioral, and medical experiences can significantly affect the future development and health of an individual and their offspring. This article describes and analyzes the ethical and legal implications of these new scientific findings.

Omniveillance, Privacy In Public, And The Right To Your Digital Identity: A Tort For Recording And Disseminating An Individual’S Image Over The Internet, Josh Blackman

Josh Blackman

Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends …

Hungry For Victory: Why High School Wrestling Coaches Should Not Be Held Liable For Injuries Resulting From Weight Loss, Alexander J. Pal

Alex J Pal

The purpose of this Note is to advocate for the universal application of primary assumption of the risk as a defense to a negligence cause of action involving interscholastic wrestling. Primary assumption of the risk is a defense which infers that a participant in a particular activity knew or should have known of a risk inherent in that activity. If a court deems a plaintiff to have assumed such a risk, they will be barred from recovering in a lawsuit. Jurisdictions are not in agreement in applying this doctrine in a sports setting.

Application of the doctrine in the sport …

Petition Without Prejudice: Against The Fraud Exception From The Toxic Tort Perspective, Jim M. Sabovich

Jim M Sabovich Jr.

While often thought of as a chemical sibling of the personal injury family, the modern toxic tort often implicates the Constitutional right to petition. Not with its core allegation that some misconduct by defendants caused plaintiffs to be exposed to a substance which then brought on some ailment, but with the marry of this to claims that defendant knew it was contaminating the air or the groundwater, but misrepresented that information to regulators, or allegations that it downplayed the danger of its substance to lawmakers resulting in less stringent regulation. Both types of allegations seek to impose tort liability for …

Chilling Effects: The Communications Decency Act And The Online Marketplace Of Ideas, Anthony M. Ciolli

Anthony M Ciolli

The popularization of the Internet has ensured that, for the first time in human history, speech is in a position where it can become truly free. In 1996 Congress, hoping to preserve and promote a vibrant and competitive free marketplace of ideas on the Internet, passed Section 230 of the Communications Decency Act, a controversial statute that grants the owners of private online forums and other Internet intermediaries unprecedented immunity from liability for defamation and related torts committed by third party users. Since then, a fierce debate has raged over how to strike the proper balance between the seemingly competing …

In The Arena: The Texas Supreme Court’S Steady Rein On Railroads And Big Business, 1880 – 1900, William J. Chriss

William J Chriss

Like the pre-Lochner United States Supreme Court, the late nineteenth century Texas Supreme Court did not see its role as one of protecting big business from government regulation. Texas courts did not, as a rule, use judicial activism to defend laissez-faire economics. Rather, like many other courts, state and federal, the Texas Supreme Court allowed the other two branches of government a relatively free hand in regulating business in general and railroads in particular. This is not to say that the Texas court was anemic or passive. In fact, the Texas Supreme Court went well beyond merely deferring to legislative …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …

Tort Made For Hire – Reconsidering The Ccnv Case, Assaf Jacob

Assaf Jacob

It has been more than 15 years since the U.S. Supreme Court, in its landmark decision in Community for Creative Non-Violence v. Reid adopted the common law of agency for the interpretation of the term “employee” in the context of “work made for hire”. Since then, despite some criticism, the agency test has become the norm. This paper argues the Supreme Court’s inclination to apply the work for hire doctrine through agency law is misguided. The agency test, which is based on Tort Law principles, is clearly anomalous in the context of Copyright Law, which differs significantly from Tort Law …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline Lipton

Jacqueline D Lipton

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

The Certainty Principle As Justification For The Group Defamation Rule, Nat S. Stern

Nat S Stern

Under the group defamation rule, a member of a defamed group may not recover unless the defamatory statement can be reasonably understood to refer specifically to that individual. The predominant approach in making the determination of whether a member has an actionable claim places heavy emphasis on the distinction between large and small groups. While that distinction is defensible, the imprecise underpinnings of the approach has left it vulnerable to criticism and to periodic proposals for other standards that do not serve the rule’s purposes as well. This article offers the certainty principle as a central justification of the prevailing …

Neither Saints Nor Devils: A Behavioral Analysis Of Attorneys' Contingent Fees, Eyal Zamir, Ilana Ritov

Eyal Zamir

The market for legal services, and particularly lawyers’ Contingent Fee (CF) arrangements, have been extensively studied from legal, economic and sociological standpoints, but curiously not from a behavioral perspective. Building on Kahneman and Tversky’s Prospect Theory, this paper presents a series of experiments designed to reveal people’s preferences regarding attorneys’ fees and their perceived fairness.

Contrary to common economic wisdom, we demonstrate that loss aversion (rather than risk aversion or incentivizing the lawyer to win the case) plays a major role in clients’ preferences for CF. Facing a choice between a mixed “gamble” and a pure positive one, plaintiffs prefer …

When Theory Met Practice: Teaching Tort Law From A Practical Perspective, Prentice L. White

Prentice L White

WHEN THEORY MET PRACTICE: TEACHING TORT LAW FROM A PRACTICAL PERSPECTIVE ABSTRACT When I initially entered the world of academia, I did so with the intention of not only teaching my students the black letter law, but I also envision an opportunity to share with them my experiences in the practice. My philosophy has always been “How can you teach what you have not learned.” Learning is an on-going process and it is not limited to the classroom—especially in professional school. That’s why it was so important for me to share a practical experience with my students as much as …

Responsibility And Proximate Cause, Peter M. Gerhart

Peter M. Gerhart

This article solves the many puzzles of proximate cause by articulating a normative theory that explains why a person who acts unreasonably and causes harm is sometimes not responsible in negligence for that harm. The article first articulates a methodology of justification and explains how our understanding of proximate cause has lacked a justificational basis. The article then develops a theory of responsibility that explains proximate cause cases. Rather than seeing proximate cause as a device to cut off liability, this theory sees proximate cause as determining whether unreasonable conduct is the source of an obligation with respect to particular …

Pretexting Scandal At Hewlett-Packard, Debra J. Reed

Debra J Reed

In 2006 Hewlett-Packard Corporation, (H.P.) and Chairwoman Patricia Dunn committed the tort of intrusion and violated the right to privacy afforded to citizens by California’s Constitution when Patricia C. Dunn ordered the requisition of the phone records of H.P. directors and members of the media. H.P.’s agents masqueraded as the directors and journalists to the phone company in order to induce the phone company to hand over the private phone records. This practice, referred to as pretexting, became a criminal offense in 2007.

Someone in Hewlett-Packard’s, (H.P.) boardroom was covertly speaking to the media about confidential board business. As early …

If You Choose To Go Outside Without An Umbrella While It Is Raining, Expect To Get Wet: Why Insurance Indemnification Of The Tortious Transmission Of Sexually Transmitted Diseases Is Contrary To Public Policy, Megan L. Johnson

Megan L Johnson

As last reported by the Centers for Disease Control and Prevention in 2005, at least nineteen million people will contract a sexually transmitted disease (STD) annually, costing the United States $1.4 billion a year. Many victims will contract a disease from someone who knew or should have known that he or she was a disease-carrier, and thus the transmission could have been avoided with proper notification and protection or abstinence.

The STD epidemic has led to an increase in litigation over STD transmission and insurance indemnification of the damages. Insured tortfeasors who transmit STDs turn to their insurance policies for …