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Articles 1 - 30 of 82
Full-Text Articles in Law
Summary Of Holcomb V. Georgia Pacific, 128 Nev. Adv. Op. 56`, Miriam C. Meyer
Summary Of Holcomb V. Georgia Pacific, 128 Nev. Adv. Op. 56`, Miriam C. Meyer
Nevada Supreme Court Summaries
An appeal from a district court’s grant of summary judgment for manufacturers of asbestos-containing products.
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
Natural Law, Slavery, And The Right To Privacy Tort, Anita L. Allen
All Faculty Scholarship
In 1905 the Supreme Court of Georgia became the first state high court to recognize a freestanding “right to privacy” tort in the common law. The landmark case was Pavesich v. New England Life Insurance Co. Must it be a cause for deep jurisprudential concern that the common law right to privacy in wide currency today originated in Pavesich’s explicit judicial interpretation of the requirements of natural law? Must it be an additional worry that the court which originated the common law privacy right asserted that a free white man whose photograph is published without his consent in …
How Do The Elderly Fare In Medical Malpractice Litigation, Before And After Tort Reform? Evidence From Texas, Myungho Paik, Bernard S. Black, David A. Hyman, William M. Sage, Charles M. Silver
How Do The Elderly Fare In Medical Malpractice Litigation, Before And After Tort Reform? Evidence From Texas, Myungho Paik, Bernard S. Black, David A. Hyman, William M. Sage, Charles M. Silver
Faculty Scholarship
The elderly account for a disproportionate share of medical spending, but little is known about how they are treated by the medical malpractice system, or how tort reform affects elderly claimants. We compare paid medical malpractice claims brought by elderly plaintiffs in Texas during 1988–2009 to those brought by adult non-elderly plaintiffs. Controlling for healthcare utilization (based on inpatient days), elderly paid claims rose from about 20% to about 40% of the adult non-elderly rate by the early 2000s. Mean and median payouts per claim also converged, although the elderly were far less likely to receive large payouts. Tort reform …
Do Damages Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review Of Estimates And The Methods Used To Produce Them, Kathryn Zeiler, Lorian E. Hardcastle
Do Damages Caps Reduce Medical Malpractice Insurance Premiums?: A Systematic Review Of Estimates And The Methods Used To Produce Them, Kathryn Zeiler, Lorian E. Hardcastle
Georgetown Law Faculty Publications and Other Works
Despite common claims made in policy debates, the theoretical connection between tort reform and medical malpractice insurance premiums is ambiguous. Simple models suggest reforms such as statutory damages caps reduce premiums. More elaborate models that account for changes in physician behavior suggest caps might increase or have no impact on premiums. A number of empirical studies have been conducted to estimate the impacts of caps on premiums, and several qualitative literature reviews have attempted to draw general conclusions from the literature. No review, however, has offered a comprehensive and systematic analysis of the full set of empirical studies. This chapter …
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch
Financiers As Monitors In Aggregate Litigation, Elizabeth Chamblee Burch
Scholarly Works
This Article identifies a market-based solution for monitoring large-scale litigation proceeding outside of Rule 23’s safeguards. Although class actions dominate the scholarly discussion of mass litigation, the ever increasing restrictions on certifying a class mean that plaintiffs’ lawyers routinely rely on aggregate, multidistrict litigation to seek redress for group-wide harms. Despite sharing key features with its class action counterpart—such as attenuated attorney-client relationships, attorneyclient conflicts of interest, and high agency costs—no monitor exists in aggregate litigation. Informal group litigation not only lacks Rule 23’s judicial protections against attorney overreaching and self-dealing, but plaintiff’s themselves cannot adequately supervise their attorneys’ behavior. …
Managerial Judging: The 9/11 Responders' Tort Litigation, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr
Managerial Judging: The 9/11 Responders' Tort Litigation, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr
Faculty Scholarship
No abstract provided.
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
UF Law Faculty Publications
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …
Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton
Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton
Scholarly Works
Without question, O.C.G.A. 51-12-13 as construed in McReynolds and Couch ushers in a new era in Georgia tort law. It topples the old regime in which multiple tortfeasors were held jointly liable when their combined acts of negligence injured an innocent plaintiff. The new regime is one of apportionment and liability limited to one's personal share of fault. Fault may be apportioned when it previously could not. It may be apportioned to those who are immune, to those who are unknown, and even to those who intentionally injure an innocent plaintiff. The practical consequence of this regime change is to …
Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton
Who Owes How Much? Developments In Apportionment And Joint And Several Liability Under O.C.G.A. § 51-12-33, Thomas A. Eaton
Scholarly Works
For most of its history, Georgia followed the traditional common law rule of joint and several liability and the equally well-settled principle that negligence could not be compared with intent when apportioning liability. Both of those propositions were dramatically altered by the enactment of the 2005 amendments to the Official Code of Georgia Annotated (O.C.G.A.) section 51-12-33 as construed by the Georgia Supreme Court in two recent opinions.
Defensive Medicine And Obstetric Practices, Michael Frakes
Defensive Medicine And Obstetric Practices, Michael Frakes
Cornell Law Faculty Publications
Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of noneconomic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …
The Political Puzzle Of The Civil Jury, Jason M. Solomon
The Political Puzzle Of The Civil Jury, Jason M. Solomon
Faculty Publications
At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.
The debate over the jury—in both the academic literature and the …
Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark
Supplemental Brief Of Professors Anthony J. Bellia Jr. And Bradford R. Clark As Amici Curiae In Support Of Respondents, Anthony J. Bellia, Bradford R. Clark
Court Briefs
From the Summary of Argument This case squarely presents the question whether ATS jurisdiction extends to claims solely between aliens. The plaintiffs and defendants are all aliens; no U.S. citizen or corporation has ever been a party to the case. Because the issue of party alignment under the ATS is a question of subject matter jurisdiction, the parties cannot waive it, and either the Court or a party may raise it anytime. And the question whether the ATS covers suits between aliens is likely to recur; indeed, the issue is squarely presented by the Ninth Circuit's recent ruling in Sarei …
'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille
'How's My Doctoring?' Patient Feedback's Role In Assessing Physician Quality, Ann Marie Marciarille
Faculty Works
A society-wide consumer revolution is underway with the rise of online user-generated review websites such as Yelp, Angie’s List, and Zagat. Service provider reviews are now available with an intensity and scope that attracts increasing numbers of reviewers and readers. Health care providers are not exempt from this new consumer generated scrutiny though they have arrived relatively late to the party and as somewhat unwilling guests.
The thesis of this article is that online patient feedback on physicians is relevant and valuable even though it is also uncomfortable for health care providers. This is because the modern physician-patient relationship is …
License To Kill? Corporate Liability Under The Alien Tort Claims Act?, Kevin Golden
License To Kill? Corporate Liability Under The Alien Tort Claims Act?, Kevin Golden
In the Balance
Because Kiobel removed corporate defendants from the scope of civil liability under the ATS, and because a corporation is not a person who can be charged, convicted and imprisoned for a crime, it effectively placed large multinational corporations above the law. Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 145 (2d Cir. 2010). In Part II of this article, I will provide a necessary overview of the history of the ATS and its evolution into modern-day relevance. I will discuss the state of ATS law as it pertains to corporations in Part III. Lastly, I will discuss the Kiobel …
Summary Of Fga, Inc. V. Giglio, 128 Nev. Adv. Op. 26, Brandon C. Sendall
Summary Of Fga, Inc. V. Giglio, 128 Nev. Adv. Op. 26, Brandon C. Sendall
Nevada Supreme Court Summaries
The Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context to sit-down restaurants, and whether the district court abused its discretion in excluding certain evidence.
Real Remedies For Virtual Injuries, Anita Bernstein
Real Remedies For Virtual Injuries, Anita Bernstein
Faculty Scholarship
No abstract provided.
Summary Of Pack V. Latourette, 128 Nev. Adv. Op. No. 25, Matthew Vantusko
Summary Of Pack V. Latourette, 128 Nev. Adv. Op. No. 25, Matthew Vantusko
Nevada Supreme Court Summaries
Appeal from an action that was dismissed on statute of limitation grounds with prejudice. The Court addressed whether dismissal is proper in the absence of a preexisting relationship for a claim of equitable indemnity; whether contribution can be sought from a party who has not yet paid toward a judgment; and whether an expert affidavit is required for claims seeking contribution for medical malpractice.
Summary Of Winn V. Sunrise Hospital And Medical Center, 128 Nev. Adv. Op. 23, Travis Akin
Summary Of Winn V. Sunrise Hospital And Medical Center, 128 Nev. Adv. Op. 23, Travis Akin
Nevada Supreme Court Summaries
Appeal from a district court summary judgment in a medical malpractice action based on the statute of limitations under NRS 41A.097.
Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern
Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern
Scholarly Publications
No abstract provided.
Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael Wells
Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael Wells
Scholarly Works
In Torts as Wrongs, Professors John Goldberg and Benjamin Zipursky discuss the connection between "tortious wrongdoing" and "civil recourse." Their civil recourse theory "sees tort law as a means for empowering individuals to seek redress against those who have wronged them." Goldberg and Zipursky show that modern tort theory is dominated by "loss allocation," which uses liability and damages as instruments for assigning losses to deter unwanted behavior and to compensate the plaintiff. Under loss allocation, the central principle of damages is full compensation that is, to make the plaintiff whole. The core component of damages, though not the only …
Summary Of Cafe Moda V. Palma, 128 Nev. Adv. Op. No. 7, Colin Seale
Summary Of Cafe Moda V. Palma, 128 Nev. Adv. Op. No. 7, Colin Seale
Nevada Supreme Court Summaries
The Court considered a defendant’s appeal of a District Court’s judgment which held the tortfeasors jointly and severally liable for the plaintiff’s damages.
Summary Of Wheble V. Dist. Ct., 128 Nev. Adv. Op. No. 11, Bryan Schwartz
Summary Of Wheble V. Dist. Ct., 128 Nev. Adv. Op. No. 11, Bryan Schwartz
Nevada Supreme Court Summaries
The Court considered a petition for writ of mandamus challenging district court order denying petitioner’s/defendant’s motion to dismiss and for summary judgment in a medical malpractice matter.
Rescuing The Invention From The Cult Of The Claim, Oskar Liivak
Rescuing The Invention From The Cult Of The Claim, Oskar Liivak
Cornell Law Faculty Publications
Patent law is certainly a specialized field but I didn’t think it would be a cult. The term ‘invention’ appears in many critical statutory locations. Yet we have been taught, perhaps brainwashed, to give the term zero substantive import. Substantive use of the invention has been purged from patent doctrine. Instead every substantive question in patent law is answered by reference to the claims, the legal descriptions of the ‘metes and bounds’ of a patent’s exclusionary reach. Despite its promise of precision and uniformity, our modern invention-less system is anything but precise and uniform. This article argues that the trouble …
Slides: Air Monitoring And Litigation Update, John Jacus
Slides: Air Monitoring And Litigation Update, John Jacus
Air Quality Impacts from Oil and Gas Development (January 27)
Presenter: John Jacus, Partner, Davis Graham & Stubbs LLP, reviews recent litigation aimed at oil and gas development activities with respect to air emissions impacts, and also several recent and ongoing studies and ambient monitoring efforts focused upon air emissions from oil and gas activities
23 slides
The Case For Trial By Formula, Alexandra Lahav
The Case For Trial By Formula, Alexandra Lahav
Faculty Articles and Papers
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem …
Learning From The Master: Things Betty Thompson Taught Me, David Spratt
Learning From The Master: Things Betty Thompson Taught Me, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case, Samuel Oddi
Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case, Samuel Oddi
Akron Law Faculty Publications
As literary devices, a “story-within-a story” and a “play-within-a-play” have a long lineage. Shakespeare seems to have been particularly fond of these devices. The legal analog may be seen as the “case-within-a-case” (“trial-within-a-trial,” “suit-within-a-suit”) arising in legal malpractice cases. The case-within-a-case terminology seems to be the most commonly used and hence will be used herein. While it is clear that the “case” is the malpractice case, it is not so clear what the “case-within-” is, which is usually referred to as the “underlying case.” Often, it seems to be presumed that the underlying case is limited to litigation, which would …
California Drops The Ball: The Lack Of A Clear Approach To Recklessness In Sport Injury Litigation, Joseph Hnylka
California Drops The Ball: The Lack Of A Clear Approach To Recklessness In Sport Injury Litigation, Joseph Hnylka
Faculty Scholarship
Joseph Hnylka, California Drops the Ball: The Lack of a Clear Approach to Recklessness in Sport Injury Litigation, 1 Virginia Sports & Entertainment Law Journal 77 (2012).
Connick V. Thompson: Unclear Motives Behind A Misguided Result, Claude Nicolas
Connick V. Thompson: Unclear Motives Behind A Misguided Result, Claude Nicolas
Maryland Law Review Online
No abstract provided.