Law Commons^™

Generalidades De La Propiedad Intelectual En México, Bruno L. Costantini García

Bruno L. Costantini García

Presentación de las Generalidades de la Propiedad Intelectual en México (Propiedad Industrial y Derechos de Autor), legislación que la rige, aplicación y modalidades

Identifying Sperm And Egg Donors: Opening Pandora’S Box, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

Federal Preemption Of Claims Based On Cell Phone Hazards: Farina V. Nokia And The Road To The U.S. Supreme Court, Jean Eggen

Jean M. Eggen

No abstract provided.

Owning Hazard, A Tragedy, Barbara Young Welke

UC Irvine Law Review

No abstract provided.

Does Qualified Immunity Matter?, Alexander A. Reinert

Articles

In litigation brought pursuant to Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971), most commentators agree that qualified immunity plays a substantial role in limiting plaintiffs' ability to recover compensation. Many find this tradeoff acceptable, in part because of concerns of fairness to government official defendants and in part because courts may still play a central role in announcing the law without worrying over the retroactive effect their decision will have on the personal funds of the defendant official.

This paper considers the different role that qualified immunity may play in …

Rights-Based Theories Of Accident Law, Gregory J. Hall

All Faculty Scholarship

This article shows that extant rights-based theories of accident law contain a gaping hole. They inadequately address the following question: What justifies using community standards to assign accident costs in tort law?

In the United States, the jury determines negligence for accidental harm by asking whether the defendant met the objective reasonable person standard. However, what determines the content of the reasonable person standard is enigmatic. Some tort theorists say that the content is filled out by juries using cost benefit analysis while others say that juries apply community norms and conventions. I demonstrate that what is missing from this …

La Jurisprudencia En México, Bruno L. Costantini García

Bruno L. Costantini García

Breve presentación de la jurisprudencia en México, su aplicación, objetivos y fines para el Derecho Mexicano. ¿Por qué es util para el derecho? ¿Quién la emite?

Notariado Y Correduria Y Su Registro En México, Bruno L. Costantini García

Bruno L. Costantini García

Introducción al Derecho Notarial y Registral en México, cuyo objeto es conocer los elementos de las figuras del notario y del corredor público, la formalización de sus actos y su registro.

Breve Itinerario Por Las Teorías Del Civil Law Sobre La Personalidad Jurídica: Su Impacto En El Common Law Y En El Levantamiento Del Velo Societario, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

Deconstruyendo Al Homo Economicus: Una Revisión Conductual A Un Paradigma Del Law And Economics, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

The Jurisprudence Of Action And Inaction In The Law Of Tort: Solving The Puzzle Of Nonfeasance And Misfeasance From The Fifteenth Through The Twentieth Centuries, Theodore Silver, Jean Elting Rowe

Theodore Silver

No abstract provided.

The Business Of Torture: The Domestic Liability Of Private Airlines In The U.S. Extraordinary Rendition Program, Kate Kovarovic

University of Miami Business Law Review

No abstract provided.

Stolen Art, Looted Antiquities, And The Insurable Interest Requirement, Robert L. Tucker

Akron Law Faculty Publications

Trafficking in stolen art and looted antiquities is a multi-billion dollar enterprise. Stolen art and looted antiquities are ultimately sold to museums or private collectors. Sometimes the purchasers acquire them in good faith. But other times, the purchasers know, suspect, or willfully blind themselves to the possibility that the piece was stolen or illegally excavated and exported up the chain of title.

This problem is compounded by customs and course of dealing in the art and antiquities trade. Dealers generally decline to provide meaningful information to prospective purchasers about the provenance of a piece, and sophisticated purchasers customarily acquiesce in …

Caps Off To Juries: Noneconomic Damage Caps In Medical Malpractice Cases Ruled Unconstitutional, Jennifer W. Terry

Mercer Law Review

In 2005 the Georgia General Assembly (General Assembly) passed a controversial tort reform bill in an effort to reduce the cost of medical liability insurance for health care providers. In this bill, the legislature put a cap of $350,000 on noneconomic damages (pain and suffering) for medical malpractice cases. On March 22, 2010, the Georgia Supreme Court in Atlanta Oculoplastic Surgery, RC. v. Nestlehutt held these caps unconstitutional on grounds that they violate the state constitutional right to jury trial. By ruling on these grounds, the court was able to avoid weighing in on the competing interests of the medical …

Risky Business: Liability Of Product Sellers Who Offer Safety Devices As Optional Equipment, Richard C. Ausness

Law Faculty Scholarly Articles

This Article examines the question of whether (or when) product sellers should be allowed to offer optional safety equipment without fear of being held strictly liable for selling a defectively designed product. Part II of this Article examines several approaches to risk-bearing. At one end of the spectrum, the principle of personal autonomy dictates that consumers should decide how much risk they wish to accept. On the other hand, products liability law assumes that if consumers are allowed to subject themselves to greater risk, producers will be quick to take advantage of their inability to make rational decisions about what …

Personal Inviolability And "Private Law", Gregory C. Keating

Gregory C. Keating

The “idea of private law” has occupied a prominent place in tort theorizing over the past twenty years. To American ears, the idea has a libertarian ring, implying a realm of private freedom beyond the reach of public power. But the idea of “private law” pursued in recent tort theory is different. This strand of tort theory takes an essentially formal view of “private law” as a type of adjudication through which one member of civil society invokes the public power of the state to call another member of civil society to account for breach of an obligation, owed by …

Is Tort A Remedial Institution?, Gregory C. Keating

Gregory C. Keating

In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort …

Putting "Duty" In Its Place: A Reply To Professors Goldberg And Zipursky, Dilan Esper, Gregory C. Keating

Gregory C. Keating

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …

Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating

Gregory C. Keating

Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …

Is Negligent Infliction Of Emotional Distress A Freestanding Tort?, Gregory C. Keating

Gregory C. Keating

Liability for negligent infliction of emotional distress (NIED) is often taken to be a freestanding tort, which guards our interest in emotional tranquility against careless injury. Scope of duty determinations− settling who owes a legal obligation to exercise reasonable care and to whom they owe that obligation− are paramount on this account. Gruesome accidents may traumatize hundreds and even thousands of people. Unless the duty to exercise reasonable care not to inflict emotional harm is carefully controlled, liability will be excessive. In this paper, prepared for a conference on the Restatement 3rd of Torts, I argue that courts have come …

Strict Liability And The Mitigation Of Moral Luck, Gregory C. Keating

Gregory C. Keating

The general problem of moral luck—that responsibility is profoundly affected by factors beyond the control of the person held responsible—has two distinct dimensions in the case of accidental injury (and no doubt in many other cases). One dimension is concerned with attribution of moral blame. Thomas Nagel explains: “If one negligently leaves the bath running with the baby in it, one will realize, as one bounds up the stairs towards the bathroom, that if the baby has drowned one has done something awful, whereas if it has not one has merely been careless.” How badly one has behaved and hence …

Abusing "Duty", Dilan Esper, Gregory C. Keating

Gregory C. Keating

Black-letter law has it that “duty”—the first element of a prima facie case of negligence in tort—is a nonissue in most cases. “Duty” fixes the legal standard applicable to the conduct in question and that standard is generally the tort obligation to exercise reasonable care for the protection of those who might foreseeably be endangered by one’s actions. Commentators from Oliver Wendell Holmes to the drafters of the pending Restatement Third of Torts have recognized a general duty not to subject others to unreasonable risk of physical harm as the very foundation of modern negligence law. From the time of …

The Heroic Enterprise Of The Asbestos Cases, Gregory C. Keating

Gregory C. Keating

The asbestos crisis pushed our adjudicative institutions to the brink of failure, and exposed the extraordinary difficulty of managing mass tort litigation on a scale so vast. Even so, there is much to praise in the efforts of courts to come to grips with this, the greatest of all mass accidents. The asbestos cases are an heroic judicial effort to construct a form of enterprise liability, one tailored to the distinctive features of a mass disaster of unprecedented scope and duration. Asbestos is the greatest of modern mass accidents. It is the expression of a nightmarishly well-organized world of systematically …

Medical Malpractice And Compensation In France, Part Ii: Compensation Based On National Solidarity, Geneviève Helleringer

Chicago-Kent Law Review

In France, distinctively from the compensation process by insurers of liable professionals, compensation of the victim will in certain cases such as medical hazards, hospital-acquired infections, blood-transfusion infections, result from a compensation scheme similar to that available for victims of terrorism and crimes. It is based on national solidarity and dispensed by the National Fund for Compensation of Medical Accidents (ONIAM). The growing importance of such a compensation scheme may appear to be a double-edged evolution. On one hand, it has improved the status of victims of medical harms; they are increasingly integrally compensated more quickly and under more flexible …

Medical Malpractice And Compensation In South Africa, L. C. Coetzee, Pieter Carstens

Chicago-Kent Law Review

This article gives an overview of current medical malpractice law in South Africa. The following aspects are covered: The overall scheme for preventing and redressing medical errors and adverse events, including regulation, criminal and civil liability, and social and private insurance, and the relationships among these various systems; the details of the applicable liability and compensation systems, including criteria defining qualification for compensation, causation and "loss of chance," liability for failure to obtain informed consent, as well as matters of proof and gathering of evidence. The authors note the difficulty they had in obtaining empirical data on medical errors and …

Medical Malpractice In Austria, Bernhard A. Koch

Chicago-Kent Law Review

This article presents the Austrian law governing compensation for medical malpractice in an overview. After a glimpse at the healthcare and social insurance system, the regulatory framework is outlined, with an obvious particular focus on tort and contract law. Apart from the special case where informed consent is lacking, the various elements of a claim that patients may have mirror the general requirements of tort and contract liability in Austria, which is why the brief sketch may also serve to give at least some basic insight into that part of the legal system in general. Furthermore, peculiar approaches in handling …

Canadian Medical Malpractice Law In 2011: Missing The Mark On Patient Safety, Colleen M. Flood, Bryan Thomas

Chicago-Kent Law Review

This paper surveys the current state of medical malpractice law in Canada, along with current evidence on adverse events in Canadian hospitals, medical clinics, and long-term care facilities. Though there is currently no "burning platform" to reform Canadian medical malpractice law, the authors raise concerns about the law's failure to deter medical malpractice, as well as concerns about access to justice issues facing victims of medical malpractice. Federal and provincial governments have tried to promote patient safety through various prevention strategies—for example, through the creation of Health Quality Councils, the dissemination of information on best practices, and tighter regulation of …

Medical Malpractice And Compensation In France, Part I: The French Rules Of Medical Liability Since The Patients' Rights Law Of March 4, 2002, Florence G'Sell-Macrez

Chicago-Kent Law Review

While the French Law of medical malpractice had been mainly based on the Civil Code provisions related to contract law, the Patients Rights' Law of March 4, 2002 set forth general principles regarding the responsibility of health professionals and health institutions which are now in the Code of Public Health. The relatively new Law has modified the legal basis for medical liability, which is now regarded as a "legal regime" that is neither contractual nor tortious. The Patients' Rights Law of March 4, 2002 not only has reaffirmed the principle of fault-based liability in medical malpractice cases, but also allows …

Medical Malpractice And Compensation In Germany, Marc S. Stauch

Chicago-Kent Law Review

This paper offers an overview of the rules under German law for securing accountability and redress in cases of medical injury. It is divided into three main parts. Part I looks at the various legal consequences that may apply in such circumstances, including criminal and professional liability of the doctor, the bases for a private law claim by the patient, and the existence of pockets of non-fault based liability for injury from medical products. Part II then considers in greater detail the elements to be satisfied in respect to the two key forms of private law malpractice claim, namely faulty …

Treatment Injury In New Zealand, Stephen Todd

Chicago-Kent Law Review

The New Zealand accident compensation scheme makes provision for the payment of compensation to the victims of personal injury that is caused by medical treatment, but at the same time it bars actions for damages based upon such injury. This article gives a brief overview of the scheme as a whole and its relation- ship with the common law, and then focuses on the particular provisions governing medical injury. It includes discussion of the extent of the statutory cover, problems of causation, the operation of the medical scheme in practice, costs and funding, and issues of accountability. It ends with …