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Articles 1 - 30 of 31
Full-Text Articles in Law
Corporate And Business Law, Laurence V. Parker
Corporate And Business Law, Laurence V. Parker
University of Richmond Law Review
No abstract provided.
Environmental Law, Dana C. Nifosi
Environmental Law, Dana C. Nifosi
University of Richmond Law Review
No abstract provided.
Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Foreword: Fault In American Contract Law, Omri Ben-Shahar, Ariel Porat
Michigan Law Review
The basic rule of liability in tort law is fault. The basic rule of liability in contract law is no fault. This is perhaps one of the most striking divides within private law, the most important difference between the law of voluntary and nonvoluntary obligations. It is this fault line (speaking equivocally) that the present Symposium explores. Is it a real divide-two opposite branches of liability within private law-or is it merely a rhetorical myth? How can it be justified? As law-and-economics scholars, this fault/no-fault divide between contract and tort is all the more puzzling. In law and economics, legal …
A Comparative Fault Defense In Contract Law, Ariel Porat
A Comparative Fault Defense In Contract Law, Ariel Porat
Michigan Law Review
This Article calls for the recognition of a comparative fault defense in contract law. Part I sets the framework for this defense and suggests the situations in which it should apply. These situations are sorted under two headings: cases of noncooperation and cases of overreliance. Part II unfolds the main argument for recognizing the defense and recommends applying the defense only in cases where cooperation or avoidance of overreliance is low cost.
Order Out Of Chaos: Products Liability Design-Defect Law, Dominick Vetri
Order Out Of Chaos: Products Liability Design-Defect Law, Dominick Vetri
University of Richmond Law Review
No abstract provided.
Missouri's Second Injury Fund - Should It Stay Or Should It Go: An Examination Of The Question Facing The Missouri State Legislature, Jason R. Mcclitis
Missouri's Second Injury Fund - Should It Stay Or Should It Go: An Examination Of The Question Facing The Missouri State Legislature, Jason R. Mcclitis
Missouri Law Review
This Law Summary will start by explaining the concepts underlying the Fund within the workers' compensation system. It will then move to an indepth look at the Fund's recent developments in the judicial, executive, and legislative arenas. Finally, this Law Summary will analyze and attempt to answer the ultimate question facing the 2009 state legislature: what should be done with the Fund? This will include an examination of the Fund's future liability under its current claims and the Schoemehl decision, the need for the Fund in the wake on anti-disability discrimination laws, and adjustments and alternatives for the legislature to …
Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon
Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon
Michigan Law Review First Impressions
Should a parent who takes advantage of a personal belief exemption to avoid vaccinating a child be held liable if that child infects other people? No, because there are valid medical reasons for choosing this exemption and tracing direct transmission of these illnesses from an unvaccinated child to another person is virtually impossible.
The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow
The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow
Michigan Law Review First Impressions
Imposing tort liability on parents who fail to vaccinate their children would not serve the public health and public policy interests that drive childhood immunization efforts. The public policy goals of vaccination are to slow the spread of disease and to reduce mortality and morbidity. Our country’s public health laws already play a substantial role in furthering these goals. Although application of tort law may be an appropriate response to some of the problems that result from vaccination noncompliance, there also is a need to cultivate public understanding of the connection between individual actions and collective wellbeing. It is doubtful …
Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray
Generic Preemption: Applying Conflict Preemption After Wyeth V. Levine, Hannah B. Murray
Michigan Telecommunications & Technology Law Review
If a generic manufacturer does not have control over its safety warnings, can it comply with the obligations posed by state tort liability? State failure-to-warn actions evaluate whether a product manufacturer has met its obligation to warn consumers about known dangers associated with its product. In essence, if a manufacturer knows about a potentially dangerous outcome, it has a duty to warn its consumers. If the generic manufacturer can comply with a state duty to warn only by changing a label that the FDA will not allow it to change, it becomes impossible for the corporation to meet both requirements. …
Platitudes About Product Stewardship In Torts: Continuing Drug Research And Education, Lars Noah
Platitudes About Product Stewardship In Torts: Continuing Drug Research And Education, Lars Noah
Michigan Telecommunications & Technology Law Review
This Article focuses on one emerging aspect of tort litigation against pharmaceutical manufacturers that, if it gained traction, portends a dramatic (and potentially counterproductive) expansion in the prescription drug industry's exposure to liability. The traditional theories of products liability--mismanufacture, defective design, and inadequate warnings--no longer exhaust the potential obligations of sellers. In addition to increasingly popular claims of misrepresentation and negligent marketing, which seem more like extensions of the three defect categories than entirely novel theories, a growing chorus of commentators would impose on pharmaceutical manufacturers a broader duty to test and educate (aspects of what they call an obligation …
When And How To Defer To The Fda: Learning From Michigan's Regulatory Compliance Defense, Jason C. Miller
When And How To Defer To The Fda: Learning From Michigan's Regulatory Compliance Defense, Jason C. Miller
Michigan Telecommunications & Technology Law Review
Michigan's regulatory compliance defense properly recognizes that an FDA-approved drug carrying an FDA-approved label should not be considered defective. However, the statute's absolute immunity provides no compensation for injured parties in any circumstance, including situations where the FDA process has failed. Nevertheless, it is possible to treat the FDA's approval as significant without eliminating the possibility of all state actions against drug makers by providing a litigation back-up through state attorneys general ("AGs"). This Note examines the question of FDA approval in state tort actions in Part I, discusses Michigan's answer to that question in Part II, and offers a …
Administrative Governance As Corporate Governance: A Partial Explanation For The Growth Of China's Stock Markets, David A. Caragliano
Administrative Governance As Corporate Governance: A Partial Explanation For The Growth Of China's Stock Markets, David A. Caragliano
Michigan Journal of International Law
This Note argues that during the first decade of stock market development (roughly 1990-2000) Chinese institutions, which emphasized administrative direction and control, functioned in lieu of legal and financial institutions. Preexisting modes of administrative governance introduced incentives that mitigated information asymmetry problems inherent in initial public offerings (IPOs) and contributed to enhanced market valuation during the post-IPO phase. The author focuses on two sui generis Chinese institutions employed during this time period: the quota system for equity share issuance and the Special Treatment (ST) system for underperforming issuers. In short, the thesis is that administrative governance substituted for corporate governance.
In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse
In Search Of Justice: Increasing The Risk Of Business With State Sponsors Of Terror, Gabriel C. Lajeunesse
Michigan Law Review First Impressions
If the aims of tort law are deterrence, compensation, and provision of equitable distribution of risks, U.S. anti-terrorism laws have been margin-ally effective at best. Though Congress has passed legislation providing causes of action to U.S. victims of terrorism, compensation of victims is often difficult and terrorists are rarely deterred. Attempts to provide such recourse include the Antiterrorism Act of 1991 ("ATA"), the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), and the Flatow Amendment to the Foreign Sovereign Immunities Act ("FSIA"). These attempts, however, are not enough.
Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick
Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick
Michigan Law Review First Impressions
The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.
Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel
Insufficient Activity And Tort Liability: A Rejoinder, David Gilo, Ehud Guttel
Michigan Law Review First Impressions
In our article, Negligence and Insufficient Activity, we proposed that tort scholarship has overlooked the risk that injurers will behave strategically in setting their activity levels. Whereas the standard literature has predicted that injurers who are subject to a negligence regime will often invest efficiently in care but choose excessive activity levels, we showed that they may do exactly the opposite: injurers may deliberately restrict their activity to avoid investments in socially desirable precaution. After reviewing the conditions that may give rise to the risk of insufficient activity, we examined the ways in which the legal system can minimize the …
Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein
Activity Levels Under The Hand Formula: A Comment On Gilo And Guttel, Richard A. Epstein
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich. L. Rev. 277 (2009). Within the law and economics field, there often surfaces a near hypnotic attraction to the Hand formula as the one and only tool that drives tort law toward economic efficiency. Hand's intuition was, of course, that the test for efficiency requires a balancing of three variables. The burden of taking particular precautions is compared to the expected loss from some activity, which in turn consists of the likelihood of some particular harm multiplied by its anticipated severity. …
Another Theory Of Insufficient Activity Levels, Mark Grady
Another Theory Of Insufficient Activity Levels, Mark Grady
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). Professors David Gilo and Ehud Guttel have written an important article on the tendency of the negligence rule to produce inefficiently low activity levels. In Negligence and Insufficient Activity: The Missing Paradigm in Torts, the authors claim insufficient activity to be the "missing paradigm" in tort theory. Although I agree with Gilo and Guttel that this missing paradigm is central to negligence doctrine, I disagree with them about how insufficient activity levels arise.
Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham
Insufficient Analysis Of Insufficient Activity, Kenneth S. Abraham
Michigan Law Review First Impressions
A response to David Gilo & Ehud Guttel, Negligence and Insufficient Activity: The Missing Paradigm in Torts, 108 Mich L. Rev. 277 (2009). In Negligence and Insufficient Activity: The Missing Paradigm in Torts, David Gilo and Ehud Guttel argue that negligence law encourages inefficiently high and low levels of activity because negligence law ordinarily does not take activity levels into account. They suggest that the law should impose liability for failing to take safety precautions-even where precautions would not be cost-justified-whenever the threat of this liability negates the incentive for an actor to choose an insufficient level of activity. Until …
Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob
Dilution Of Liability And Multiple Tortfeasors In The Context Of Liability For Unrequested Precautions, Assaf Jacob
Michigan Law Review First Impressions
A Response to Ariel Porat, Private Production of Public Goods: Liability for Unrequested Benefits, 108 Mich. L. Rev. (2009). One of the more intriguing questions in tort law is the case of joint and several tortfeasors and the dilution-of-liability puzzle. When harm materializes and there are multiple potential tortfeasors, the law tends to limit the number of joint tortfeasors, focusing the final burden on a small number of actors. This limitation is achieved by several legal mechanisms, such as a no duty rule, a narrow interpretation of negligence, a restrictive implementation of the causal link (be it the but for …
Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz
Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz
Michigan Law Review First Impressions
The increasing availability of personal belief exemptions from state vaccination requirements is a growing concern among proponents of vaccination. Holding parents of non-vaccinated children liable to those they infect is among the responses proposed to maintain high vaccination rates. Even if motivated by a sincere desire to maximize the benefits of vaccination throughout society, such a step would be inadvisable, further entrenching opponents of vaccination and adding to the atmosphere of confusion and unnecessary alarm that has become increasingly common among parents of children for whom vaccination is recommended.
Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart
Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart
Michigan Law Review First Impressions
Public health agencies and citizens should employ legal approaches to hold parents accountable for refusing to vaccinate their children. The judiciary would craft an effective response to defeat the threat posed by these parents. Public-nuisance law may offer a legal mechanism to hold vaccine objectors liable for their actions.
Student Gladiators And Sexual Assault: A New Analysis Of Liability For Injuries Inflicted By College Athletes, Ann Scales
Michigan Journal of Gender & Law
This Article will focus on an issue that was probably not on the minds of 19th century educators, nor primarily on the minds of the legions of present-day academic critics of intercollegiate sports. Namely, this Article explores the ways in which big-time athletics- particularly football-normalize and encourage harms to women, including educational and sexual harms. The author’s theses depend upon acknowledging certain open secrets about college football: that it is a celebration of male physical supremacy (measured by male standards); that it is something that society lets males do and have as their sport, for reasons both good and bad; …
Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema
Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema
Michigan Law Review First Impressions
A parent’s decision not to vaccinate a child may place others at risk if the child becomes infected and exposes others to the disease. Should an individual harmed by an infection transmitted from a child whose parents chose to forgo vaccination have a negligence claim against those parents? While I do not hold a legal degree and therefore cannot speak directly to issues of law, as a physician and ethicist it seems to me that the basic elements that comprise negligence claims—harm, duty, breach of duty, and causation—are met in some cases where parents forgo vaccination.
Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen
Avoid Or Compensate? Liability For Incidental Injury To Civilians Inflicted During Armed Conflict, Yael Ronen
Vanderbilt Journal of Transnational Law
Under international law, civilians suffering injuries that are incidental to a lawful attack on a military objective are left to bear the cost of their losses. In recent years there have been calls for a change in policy that would entitle victims of military attacks to compensation, even if their losses are incidental and non-fault-based. This Article explores the notion of such a quasi-strict liability rule, which is likely to disrupt the existing balance of powers and interests under the laws of armed conflict. Following an exploration of the conceptual basis for such an obligation, the Article examines the effect …
The "Spiritual Temperature" Of Contemporary Popular Music, Tracy Reilly
The "Spiritual Temperature" Of Contemporary Popular Music, Tracy Reilly
Vanderbilt Journal of Entertainment & Technology Law
The purpose of this Article is to contribute to the volume of legal scholarship that focuses on popular music lyrics and their effects on children. This interdisciplinary cross-section of law and culture has been analyzed by legal scholars, philosophers, and psychologists throughout history. This Article specifically focuses on the recent public uproar over the increasingly violent and lewd content of death-metal and gangsta-rap music and its alleged negative influence on children. Many legal scholars have written about how legal and political efforts throughout history to regulate contemporary genres of popular music in the name of the protection of children's morals …
A Missed Opportunity: How Pakootas V. Teck Cominco Metals, Ltd. Could Have Clarified The Extraterritoriality Doctrine, Jennifer S. Addis
A Missed Opportunity: How Pakootas V. Teck Cominco Metals, Ltd. Could Have Clarified The Extraterritoriality Doctrine, Jennifer S. Addis
Seattle University Law Review
Part II of this Note relays the facts surrounding Pakootas v. Teck Cominco, Ltd.,gives a brief history of CERCLA and its liability requirements, and then summarizes the reasoning of both the district court and the Ninth Circuit. Part II also includes an overview of the presumption against extraterritoriality and the possible means of rebutting it. Part III addresses the question of whether the application of CERCLA in Pakootas was in fact extraterritorial and discusses some of the flaws in the Ninth Circuit's reasoning. After concluding that this was an extraterritorial application of CERCLA, this Part III then examines the …
Physician Peer Review Immunity: Time To Euthanize A Fatally Flawed Policy, Charles R. Koepke M.D.
Physician Peer Review Immunity: Time To Euthanize A Fatally Flawed Policy, Charles R. Koepke M.D.
Journal of Law and Health
Dr. X is a young, charismatic, board-certified surgeon at the local hospital. While popular among her patients and non-surgical colleagues, to the established surgical "Old Guard," she appears somewhat of a threat. Her training in new advanced techniques, coupled with splendid bedside manner, has caused her practice to become quite busy. However, disruption in some well-established referral patterns has occurred, and business has been siphoned away from her older colleagues. . . . This hypothetical - but not uncommonly recurring - fact pattern demonstrates the destruction of a promising medical career, elimination of competition, promotion of status quo cronyism, and …
The Trouble With Negligence Per Se, Robert F. Blomquist
The Trouble With Negligence Per Se, Robert F. Blomquist
South Carolina Law Review
No abstract provided.
One Strike And You're Out: Alcohol In The Major League Baseball Clubhouse, Steven B. Berneman
One Strike And You're Out: Alcohol In The Major League Baseball Clubhouse, Steven B. Berneman
Vanderbilt Journal of Entertainment & Technology Law
In the past decade, much has been written about Major League Baseball's (MLB) mistaken policies regarding performance-enhancing substance abuse by players. MLB executives are shortsighted, however, if they believe that steroids are the only substances being abused by players. Along with performance-enhancing drugs, professional baseball has a long-standing history of alcohol abuse. Steroids may provide better headlines--Congress has never held an investigation into alcohol abuse by professional athletes--but professional baseball faces a real danger from the unchecked liability of allowing players to overindulge at the ballpark and drive home shortly thereafter. By serving beer in the clubhouse after games, clubs …
Team Physicians: Adhering To The Hippocratic Oath Or Just Plain Hypocrites? , Andrew D. Hohenstein
Team Physicians: Adhering To The Hippocratic Oath Or Just Plain Hypocrites? , Andrew D. Hohenstein
Marquette Sports Law Review
No abstract provided.