Law Commons^™

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Big Business Beware: Punitive Damages Do Not Violate Fourteenth Amendment According To Pacific Mutual Life Insurance Co. V. Haslip, Christopher V. Carlyle

Pepperdine Law Review

No abstract provided.

Negligent Infliction Of Emotional Distress: A Proposal For A Consistent Theory Of Tort Recovery For Bystanders And Direct Victims, Julie A. Greenberg

Pepperdine Law Review

No abstract provided.

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

An Ind. Run Around The U.C.C.: The Use (Or Abuse?) Of Indemnity, Paul J. Wilkinson

Pepperdine Law Review

No abstract provided.

According To An Unnamed Official: Reconsidering The Consequences Of Confidential Source Agreements When Promises Are Broken By The Press, Peri Z. Hansen

Pepperdine Law Review

No abstract provided.

Masson V. New Yorker Magazine, Inc.: Permission For Journalists To Quote What I Mean, Not What I Say, Kevin M. Erwin

Pepperdine Law Review

No abstract provided.

Walking The Invisible Line Of Punitive Damages: Txo Production Corp. V. Alliance Resources Corp. , Nancy G. Dragutsky

Pepperdine Law Review

No abstract provided.

Sexual Harassment Of Employees By Non-Employees: When Does The Employer Become Liable?, Robert J. Aalberts, Lorne H. Seidman

Pepperdine Law Review

No abstract provided.

State Medical Reimbursement Lawsuits After Tobacco: Is The Domino Effect For Lead Paint Manufacturers And Others Fair Game? , Richard L. Cupp Jr.

Pepperdine Law Review

In 1998 the tobacco industry reached a settlement with the government for $246 billion. The massive size and scope of the states' tobacco settlement will inevitably exert a powerful influence on tort litigation for decades. The proliferation of copycat lawsuits, such as lead paint claims, seeking to emulate the spectacular success of the tobacco lawsuits will be one of the first aftershocks. The appropriate legislative response to this copycat litigation is to enact legislation limiting mass tort claims by states and other government entities. Because politics and economics may be influencing the filing of these lawsuits, rather than a purer …

Lead Paint Public Entity Lawsuits: Has The Broad Stroke Of Tobacco And Firearms Litigation Painted A Troubling Picture For Lead Paint Manufacturers?, Amber E. Dean

Pepperdine Law Review

No abstract provided.

Political Question Or Judicial Query: An Examination Of The Modern Doctrine And Its Inapplicability To Human Rights Mass Tort Litigation, Nancy S. Williams

Pepperdine Law Review

No abstract provided.

Selling Structured Settlements: The Uncertain Effect Of Anti-Assignment Clauses , Gregory Scott Crespi

Pepperdine Law Review

No abstract provided.

Federalism And Preemption In October Term 1999, Jonathan D. Varat

Pepperdine Law Review

No abstract provided.

We Want Our Lives Back Too: Expanding Absolute Liability To Include A Recovery For The Victims Of Ecological Catastrophies, Prentice L. White

Prentice L White

WE WANT OUR LIVES BACK TOO: EXPANDING THE COVERAGE OF ABSOLUTE LIABILITY TO INCLUDE A RECOVERY FOR THE VICTIMS OF ECOLOGICAL CATASTROPHES BY PRENTICE L. WHITE No one could have anticipated that the worst ecological disaster in history would take place near Louisiana’s coastline. The morning of April 20, 2010, started like any other spring day, but less than ten hours after the sun rose that morning there would be an explosion that would kill 11 oil workers. The first from the explosion would be seen from outer space and millions of gallons of crude oil would spew into the …

The Priority Of Respect Over Repair, Gregory C. Keating

Gregory C. Keating

Contemporary tort theory is dominated by a debate between legal economists and corrective-justice theorists. Legal economists suppose that tortfeasors and tortious wrongs are false targets for cheapest cost-avoiders and avoidable future losses. Corrective-justice theorists argue powerfully that the economic account of tort as search for cheapest cost-avoiders with respect to future accidents does not capture the most fundamental fact about tort adjudication, namely, that the reason we hold defendants liable in tort is that they have wronged their victims and should therefore repair the harm they have done. Deterring cheapest cost-avoiders from committing future harms no more justifies imposing liability …

Protecting The Disabled Individual Through The Use Of A Medicare Set-Aside Trust, Susan G. Haines, John J. Campbell

Marquette Elder's Advisor

In America, plaintiffs in tort settlements receive more benefits, including Medicare benefits, than plaintiffs in worker's compensation cases. A properly established Medicare set-aside trust can guarantee that a disabled worker's Medicare benefits will be available after a worker's compensation settlement. This article discusses the theory behind a Medicare set-aside trust and tips for properly using it.

Handling Tort Recoveries For Persons Over And Under Age 65, Cheryl C. Mitchell, Ferd H. Mitchell

Marquette Elder's Advisor

Winning the case is only the first step in creating a satisfactory outcome for an injured elderly or disabled individual. Myriad rules pertain to the distribution of the award and distribution arrangements may affect current and future eligibility for programs such as Medicaid and SSI.

Shaping The Disclosure Tort: Scholars' Early Importance And Modern Impotence, Jared A. Wilkerson

Jared A. Wilkerson

Legal scholars guided the creation and development of the disclosure tort for about seventy-five years (1890–1965), a period in which most states recognized a common law or statutory right to privacy. Since then, however, scholarly attempts to curb or modify the tort have yielded nothing. This article—beginning with the formalism-realism debate won by such sages as Brandeis, Pound, and Prosser and ending with modern experts like Chemerinsky, Posner, and Solove—shows that notwithstanding enormous efforts by some of America’s most respected contemporary academics, would-be reformers of the disclosure tort have not budged it since Prosser’s definition in the Restatement (Second). This …

Torts As (Only) Wrongs?: An Empirical Perspective, Lawrence Solan, Joseph Sanders, Matthew Kugler, John Darley

Lawrence M. Solan

In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.

We begin with a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law …

The Disappearing Provision: Medical Liability Reform Vanishes From The Patient Protection And Affordable Care Act Despite State Court Split, Rafael Andre Roberti

Legislation and Policy Brief

The legal and medical communities have debated the impact and necessity of medical liability reform for over twenty years. At the heart of the debate is the question of how to strike a balance between compensating patients and their families for the thousands of deaths and injuries resulting from medical errors that occur annually, and encouraging physicians to continue to care for patients across America. While several states have passed medical liability reform laws previously, on March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (ACA)—colloquially known as the “health care bill”—that contains provisions on medical …

Pliva Shields Big Pharma From Billions, Cuts Consumers' Rights, Dana Taschner

San Diego Law Review

This Article explores the emergence of the LRA test, as well as its dangers, and explains how an equivalent norm underlies recent monopolization cases. The Author concludes that the law should not require business practices to maximize social welfare to pass muster under the antitrust laws. As tools of public policy directed at unilateral market behavior, antitrust and regulation have long played distinct, though complementary, roles. Natural-monopoly regulation has as its immodest goal the maximization of consumer welfare by simultaneously imposing universal service obligations and spurring the efficiencies associated with competition through the imposition of various behavioral constraints. That such …

Privacy For Social Networking, Connie Davis Powell

University of Arkansas at Little Rock Law Review

This article begins by considering the emergence of social networks as a major medium of communication and posits that the success of social networks is attributable to their users' willingness to share their information. Next, the article considers the expectation of privacy for users of social networks and whether such expectation is reasonable. In particular, the article discusses the privacy policies and legal terms governing the use of social networks, and tracks the evolution of such terms and policies as they slowly whittle away user control over time. The article then discusses public outcry regarding the disclosure of information contrary …

An Inconvenient Lie: Big Tobacco Was Put On Trial For Denying The Effects Of Smoking; Is Climate Change Denial Off-Limits?, Elizabeth Dubats

Northwestern Journal of Law & Social Policy

Plaintiffs have made several notable attempts to bring nuisance, trespass, and negligence suits against major sources of greenhouse gas emissions for climate change related injuries. While climate change is a widely recognized environmental issue, courts have refused to recognize it as a basis for a valid cause of action in tort, finding either petitioners lack standing to bring the claim, or that the claim raises political questions that should not be addressed by the judiciary. Some more recent climate change tort claims have also included allegations of fraud on the part of the hydrocarbon industry for actively perpetuating misinformation about …

Tort Law—Tortious Interference With Business Expectancy – A Trap For The Wary And Unwary Alike, Larry Watkins

University of Arkansas at Little Rock Law Review

Despite remaining stable and unchanged over the last decade, tortious interference has also remained problematic in Arkansas. Although tortious interference with contract in Arkansas suffers from many ailments, this note focuses on interference with business expectancy, discussing interference with contract only as necessary. Specifically, the note argues that tortious interference in Arkansas should be formally separated into two distinct rules—interference with contract and interference with business expectancy—in order to keep courts from mixing terms and standards from both rules when addressing only one cause of action. This note further proposes that the improper element of tortious interference in Arkansas should …

Taxing Your Tears: Section 104(A)(2) And The Real Reason To Cry, Richard Cameron Gower

Richard Cameron Gower

For nearly a century the federal government has been taxing the income of its citizens. For almost as long, it has been exempting damages paid in tort suits from that tax. Nonetheless, scholars cannot agree as to why the exemption should exist. Many justifications have been proposed but they all fail to rationalize the personal injury exemption. After considering and dismissing a variety of justifications for the personal injury tort exemption, this Article considers the sympathy-based rationale for the exemption, which claims that personal physical injury plaintiffs deserve favorable tax treatment because of their sympathetic situations. Though personal physical injury …

Another Jackpot (In)Justice: Verdict Variability And Issue Preclusion In Mass Torts, Byron G. Stier

Pepperdine Law Review

No abstract provided.

Of Frightened Horses And Autonomous Vehicles: Tort Law And Its Assimilation Of Innovations, Kyle Graham

Faculty Publications

This symposium contribution considers five recurring themes in the application of tort law to new technologies. First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be identified, and resolved, by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, potential claims by early adopters of the technology may be …

Contract + Tort = Property: The Trade Secret Illusion, Matthew Edward Cavanaugh

Marquette Intellectual Property Law Review

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 …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.