Law Commons^™

Aiding And Abetting Under The Antiterrorism Act: Despite Statutory Silence, Why Extending Liability To Aiders And Abettors Of International Terrorism Furthers Congressional Intent To Compensate Plaintiffs And Defeat Terrorist Financial Pathways, Jesse Snyder

Jesse Snyder

No abstract provided.

Auditor Liability To External Users For Misleading Financial Statements Of Publicly Listed Companies: Two Normative Propositions, John Ja Burke

John JA Burke

In his 2006 article, Professor Eric L. Talley undertook a limited, but important enterprise, to quantify the risk of cataclysmic legal liability faced by audit firms for failure to detect fraud in company prepared financial statements. Drawing primarily from the Securities Class Action Alert database, Professor Talley constructed a “conceptual diagram” to formulate the level of aggregate risk capable of threatening the viability of audit firms sustaining an adverse judgment. The enterprise contributed an objective framework to assist policymakers, both within and outside the United States, to develop appropriate regulatory reforms to address the audit industry’s demand to “limit exposure …

Cancellazione Delle Società Di Capitali E Responsabilità Di Soci E Liquidatori, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

La Responsabilità Per Il Prospetto Fra Diritto Comunitario, Legge Nazionale E Regolamento Consob, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

Accountability, Liability, And The War On Terror -- Constitutional Tort Suits As Truth And Reconciliation Vehicles, George D. Brown

George D. Brown

This Article examines the role of civil suits in providing accountability for the Bush administration's conduct of the "war on terror." There have been calls for a "Truth and Reconciliation Commission" to perform this function, almost like a retroactive impeachment of President Bush. For now, the idea appears to be dead, especially since many of the policies have continued under President Obama. Increasingly, the default accountability mechanism for questioning government conduct is the array of civil suits against federal officials by self-proclaimed victims of the war, cases which might be referred to as reverse war on terror suits. Many of …

The Change In Knowledge Proposal: Repairing Preemption Doctrine In Medical Products Liability, Yite John Lu

Yite J Lu

This Article proposes a new rule that would allow the FDA to achieve the best balance of medical product availability and safety without interference from tort law when the agency has adequately reviewed the safety science. After an analysis of the FDA’s competency to review, and manufacturers’ ability to hide, safety concerns, this Article argues that FDA review is adequate during the initial approval process, but the agency cannot adequately respond to newly acquired safety information that arises post-market. To take advantage of this finding, the change in knowledge proposal would require tort plaintiffs to show a change in the …

Cases And Materials On The Law Of Torts, 5th Edition, Harry Shulman, Fleming Jones, Oscar Gray, Donald Gifford

Oscar S. Gray

This casebook is designed for the professor who takes seriously the often-articulated goals of teaching case analysis and the impact of social and economic factors on the common law. Enough of the majority opinions, and often the dissenting opinions, is presented to illustrate how the cases fit together with precedents and to enable students to evaluate competing arguments. The latest edition, though streamlined from previous editions, adds both coverage of emerging areas of liability, including claims under the alien tort statute, and traditional torts applied in new factual contexts, such as cyberspace and biomedical engineering.

Harper, James And Gray On Torts, 3rd Edition, Fowler Harper, Fleming James, Oscar Gray

Oscar S. Gray

This preeminent work on torts is the most complete, authoritative resource analyzing the latest developments in this turbulent field of practice. Harper, James and Gray on Torts, Third Edition, newly revised and updated in a six-volume set, gives you detailed, up-to-date information and expert guidance on such rapidly changing areas as:

• Health care liability
• Standards for damages
• Product liability
• Defamation
• Assumption of risk
• Business torts
• Liability for emotional distress
• Pure economic loss
• Privacy
• Family torts
• Comparative and contributory negligence
• Governmental liability
• Duties of owners and occupiers of land
• Misrepresentation and nondisclosure
• Malicious prosecution and abuse of process
• Liability for abnormally …

Wrongful Life: A Modern Claim Which Conforms To The Traditional Tort Framework, Richard E. Wolff

Richard D. Wolff

No abstract provided.

What Should Guide Determinations Of Foreign Official Immunity In Us Courts After Samantar?, Chris C. Morley

Chris C Morley

In the recent Samantar decision, the Supreme Court held that individual foreign officials were not covered by the Foreign Sovereign Immunities Act but might still be covered by common law immunity. This article analyzes the extent of that common law immunity and discusses whether more recent developments in domestic and international human rights law should impact the availability of immunity for officials accused of torture, extra-judicial killings, and other violations of the law of nations.

Although the bulk of authority from US and foreign courts suggests that foreign officials should enjoy immunity for acts committed within the scope of their …

New York Naivete - Trust Me, I'M A Doctor, Kenneth L. Sanders Md, Geoffrey B. Sanders

Kenneth L Sanders MD

Under New York law, a defendant physician may submit a self-serving expiation of absence of negligence in lieu of an impartial, independent and impartial opinion of a third-party expert. This practice is iniquitous to a plaintiff who has suffered medical malpractice and who is required to pay for an independent physician’s affirmation that malpractice has taken place. Focusing attention upon the questionable origins of this principle may allow legal or legislative rectification.

Damages To Business Interests, R. Steven Thing

R. Steven Thing

No abstract provided.

Crude Decisions: Re-Examining Degrees Of Negligence In The Context Of The Bp Oil Spill, Blaine Lecesne

Blaine LeCesne

CRUDE DECISIONS: RE-EXAMINING DEGREES OF NEGLIGENCE IN THE

CONTEXT OF THE BP OIL SPILL

Blaine LeCesne

Abstract

The blowout of the Macondo well caused the worst environmental disaster in history and the ensuing high-stakes litigation is the largest ever mass tort case. The pivotal issue in the case is whether this cataclysmic event was caused by the “gross negligence” or “willful misconduct” of the responsible parties. Such a determination could result in exponentially increased compensatory and punitive damages, augmented environmental sanctions and potential criminal liability. These heightened degrees of fault are frequently used in regulatory statutes, like the Clean Water …

Civil Recourse As Social Equality, Jason M. Solomon

Faculty Publications

No abstract provided.

Locking In Wedlock: Reconceptualizing Marriage Under A Property Model, Ruth Sarah Lee

Ruth S Lee

Legal commentators have long understood divorce laws to reflect our cultural and ideological understanding of the role of marriage, but have criticized topical divorce laws for either failing to match up with current notions of fairness, or for under-compensating at least one party. As divorce laws have evolved, the way we conceptualize marriage has also evolved. Marriage has been modeled as, inter alia, a commitment, a governance, a promise, a tort-doctrinal duty, a status, and now more popularly, a contract or a partnership. Each model provides its own corollary for fairness and opportunism between spouses, possible remedies upon divorce, and …

Contract + Tort = Property: The Trade Secret Illustration, Matthew E. Cavanaugh Mba Cpa Esq.

Matthew E. Cavanaugh MBA CPA Esq.

This article commences with an introduction to the use of Hegel’s famous dialectical method as an arithmetic analysis of law. It reviews Hegel’s assertion that the sum of property and contract is tort and crime, and then suggests a better dialectic is that contract plus tort equals property. This article then reviews the doctrines of contract, tort, and property, focusing on the plaintiff’s rights and remedies, and who can be defendants in each of the three doctrines. The article next reviews the law of one particular type of intellectual property, trade secrets, because this article uses trade secrets as a …

New Frontiers Of Reprogenetics: Snp Profile Collection And Banking And The Resulting Duties In Medical Malpractice, Issues In Property Rights Of Genetic Materials, And Liabilities In Genetic Privacy., Stephanie Sgambati

Stephanie Sgambati

ABSTRACT

Single nucleotide polymorphisms (SNPs) represent the portions of our genetic makeup where human differ from each other. Mapping an individual’s profile creates a DNA fingerprint entirely unique to that individual. The primary purpose for the creation of SNP profiles has been validation of medical techniques used in reproductive medicine that require researchers to be able to definitively determine which embryo makes which baby- thus matching DNA fingerprints from infants to those from embryos. In spite of this seemingly narrow use, the potential value of the information contained in the SNP profile is enormous.

In this paper, I explore how …

Preparatory Negligence, Robert H. Heidt

Robert H. H. Heidt

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.

The More Things Change, The More They Stay The Same: A Comparison Of Medical Malpractice Trials In North Carolina And Virginia, 2000-2010i, Ralph Peeples, Catherine Harris

Ralph Peeples

The paper begins with an abstract. Please see the manuscript.

The Distorted Reality Of Civil Recourse Theory, Alan Calnan

Alan Calnan

In their recent article Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory (CRT) of tort law. A purely descriptive account, CRT holds that tort law is exclusively a scheme of private rights for the redress of legal wrongs and is not a pragmatic mechanism for imposing strict liability or implementing public policy. The present paper challenges this view by revealing critical errors in its perspective, methodology, and analysis. It shows that Goldberg and Zipursky do not objectively observe tort law and uncritically report what they …

Is Privity Dead? Should It Be?, David F. Tavella

David F. Tavella

Privity, a concept that is over 150 years old, may have worked well in the 19th Century, seems outdated in a time national accounting firms and law firms. In the 19th and early 20th Centuries, when a person may have gone to an agent, accountant, or other service provider for advice, there was no thought that the advice would be distributed to potentially millions of people with the possibility of billions of dollars in losses for negligent performance. Today, this is common in the accounting and insurance industries. The question is whether a concept, even one firmly rooted in American …

Does 'Sorry' Incriminate? Evidence, Harm And The Meaning Of Apologies, Jeffrey S. Helmreich

Jeffrey S. Helmreich

Apology has proven a dramatically effective means of resolving conflict and preventing litigation. Still, many injurers, particularly physicians, withhold apologies because they have long been used as evidence of liability. Recently, a majority of states in the U.S. have passed “Apology Laws” designed to lift this disincentive, by shielding apologies from evidentiary use. However, most of the new laws protect only expressions of benevolence and sympathy (such as “I feel bad about what happened to you”). They exclude full apologies, which express regret, remorse or self-criticism (“I should have prevented it,” for example). The state measures thereby reinforce a prevailing …

Due Diligence, Trattative E Fattispecie Di Responsabilità Civile, Valerio Sangiovanni

Valerio Sangiovanni

No abstract provided.

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 …

Rescission In Texas, A Suspect Remedy, George P. Roach

George P Roach

Rescission in Texas, A Suspect Remedy

Equitable remedies are sometimes overlooked even when favorable ex post changes in values or operating performance warrant their serious consideration. Due to liberalized standards for pleading and electing alternative remedies, rescission in Texas can provide a windfall to the claimant in comparison to standard monetary damages especially after favorable ex post changes. Texas courts are aware of the windfall incentive and can treat the claimant’s plea for rescission as suspect or opportunistic. Litigators on either side of a plea for rescission should consider how their case supports or refutes the suspicion that rescission would …

Balancing Deterrence And Cost Using An Inverse Multiplier: A Modification Of The Polinsky-Shavell Model For Punitive Damages., John F. Willems Mr.

John F Willems Mr.

States have been dividing punitive damage awards between the government and the plaintiff since the 1980s. However, there has been an academic debate over whether this method of preventing a windfall reduces costs at the expense of deterrence. Polinsky and Che have argued that dividing punitive damages reduces litigation costs by increasing deterrence while decreasing the incentive to bring a suit. Sanchirico and Choi have responded that reducing the recovery of the plaintiff reduces deterrence be discouraging plaintiffs from putting the same effort into lawsuits that defendants do. The effect observed by Sanchirico and Choi can be moderated combining a …

Mass Torts And Due Process, Sergio Campos

Sergio J. Campos

Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first …

Mass Torts And Due Process, Sergio J. Campos

Sergio J. Campos

Almost all courts and scholars disfavor the use of class actions in mass tort litigation, since class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court, in fact, has strongly suggested that protecting such litigant autonomy is a requirement of due process, and has done so in recent decisions concerning the class action, arbitration, preclusion law, and the Erie doctrine. In this article I argue that protecting litigant autonomy in the mass tort context is self-defeating, and, in the process, rethink basic tenets of procedural due process. Relying on recent property theory, I first …