Law Commons^™

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler

Pepperdine Law Review

Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.

Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine

Daniel H. Erskine

Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring the …

Slides: Forests And Grasslands, Federico Cheever

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: Professor Federico Cheever, University of Denver Sturm College of Law

30 slides

Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness

Law Faculty Scholarly Articles

One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …

Federal Preemption Of State Products Liability Doctrines, Richard C. Ausness

Law Faculty Scholarly Articles

Federal agencies now regulate the manufacture, design, and labeling of hundreds of consumer products. For example, the Consumer Product Safety Commission promulgates "consumer product safety standards" for a number of consumer products. Likewise, the National Traffic and Motor Vehicle Safety Act of 1966 authorizes the National Highway Transportation Safety Administration to develop safety standards for automobiles and other motor vehicles. Additionally, the Food and Drug Administration (FDA) exercises extensive control over prescription drugs, biologics, medical devices, and over-the-counter drugs. The FDA also regulates food labeling.6 Finally, Congress has established statutory labeling requirements for cigarettes, smokeless tobacco products, and alcoholic beverages. …

The Impact Of The Cipollone Case On Federal Preemption Law, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court handed down an opinion in the Cipollone case on June 24, 1992. Justice Stevens, writing for the majority, concluded that the Federal Cigarette Labeling and Advertising Act preempted all tort claims against cigarette manufacturers based on failure to provide adequate warnings about the health risks of smoking. However, the Court also held that claims based on breach of express warranty, misrepresentation, and conspiracy were not preempted by the Act. Thus, although Cipollone represents a clear victory for tobacco companies, it also leaves the door open for future litigation. The first part of this Article will …

Cigarette Company Liability: Preemption, Public Policy And Alternative Compensation Systems, Richard C. Ausness

Law Faculty Scholarly Articles

This Article speculates that some courts may have used the preemption doctrine to mask their misgivings about the ability of tort litigation to provide fair compensation to injured consumers without bankrupting the tobacco industry. Consequently, the author suggests that it may be necessary to streamline the litigation process for mass torts or perhaps even to replace it with an alternative compensation system for the purpose of adjudicating smoking-related claims.

With this in mind, Part I briefly examines the health risks of smoking and the nature of the common law duty to warn. It also reviews a number of recent cigarette …