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Articles 1 - 30 of 33
Full-Text Articles in Law
Brookfield Multiplex Ltd V Owners Corporation Strata Plan 61288: More Certainty Concerning The Builder’S Duty Of Care For Economic Loss, Brittany Cherry
Brookfield Multiplex Ltd V Owners Corporation Strata Plan 61288: More Certainty Concerning The Builder’S Duty Of Care For Economic Loss, Brittany Cherry
The University of Notre Dame Australia Law Review
No abstract provided.
The Model Business Corporation Act And Corporate Governance: An Enabling Statute Moves Toward Normative Standards, John Olson, Aaron Briggs
The Model Business Corporation Act And Corporate Governance: An Enabling Statute Moves Toward Normative Standards, John Olson, Aaron Briggs
John Olson
No abstract provided.
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Negligence And Two-Sided Causation, Keith N. Hylton, Haizhen Lin, Hyo-Youn Chu
Faculty Scholarship
We extend the economic analysis of negligence and intervening causation to "two-sided causation" scenarios. In the two-sided causation scenario the effectiveness of the injurer's care depends on some intervention, and the risk of harm generated by the injurer's failure to take care depends on some other intervention. We find that the distortion from socially optimal care is more severe in the two-sided causation scenario than in the one-sided causation scenario, and generally in the direction of excessive care. The practical lesson is that the likelihood that injurers will have optimal care incentives under the negligence test in the presence of …
Causation In Disgorgement, Mark P. Gergen
Causation In Disgorgement, Mark P. Gergen
Mark P. Gergen
The Restatement (Third) of Restitution and Unjust Enrichment offers scant guidance on how to determine wealth legally attributable to a wrong for purposes of disgorgement. The black letter admits defeat, stating, "[T]he court may apply such tests of causation and remoteness, . . . may recognize such credits or deductions, and may assign such evidentiary burdens, as reason and fairness dictate, consistent with the object of restitution . . . ."' The comments warn against resort to mechanical rules, including the familiar rule of but-for causation. They recommend merging the factual issue of causation with issues of policy and fairness …
The Jury's Role In Deciding Normative Issues In The American Common Law, Mark P. Gergen
The Jury's Role In Deciding Normative Issues In The American Common Law, Mark P. Gergen
Mark P. Gergen
No abstract provided.
The Ambit Of Negligence Liability For Pure Economic Loss, Mark P. Gergen
The Ambit Of Negligence Liability For Pure Economic Loss, Mark P. Gergen
Mark P. Gergen
No abstract provided.
Newsroom: Logan On Drone Law, Roger Williams University School Of Law
Newsroom: Logan On Drone Law, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel
British Politics, The Welfare State, And Tort Liability Of Public Authorities, Dan Priel
Dan Priel
There has been a notable shift in the scope of negligence liability of public authorities in the Post War period. Notably there was a trend toward restriction of liability in the 1980s. This essay tries to explain why this happened not by focusing on changing legal formulas but by examining the political context of the law in this area. I begin the essay by demonstrating how changes in the attitudes toward the role of the state have led to the changes in the law in this area. I then go on to examine the impact of Thatcher’s ascent to power. …
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Mens Rea, Criminal Responsibility, And The Death Of Freddie Gray, Michael Serota
Michigan Law Review First Impressions
Who (if anyone) is criminally responsible for the death of Freddie Gray, the 25-year-old African-American man who died from injuries suffered while in the custody of Baltimore police? This question has been at the forefront of the extensive coverage of Gray’s death, which has inspired a national discussion about law enforcement’s relationship with black communities. But it is also a question that may never be fairly resolved for reasons wholly unrelated to the topic of community policing, with which Gray’s death has become synonymous. What may ultimately hamper the administration of justice in the prosecution of the police officers involved …
Privity's Shadow: Exculpatory Terms In Extended Forms Of Private Ordering, Mark P. Gergen
Privity's Shadow: Exculpatory Terms In Extended Forms Of Private Ordering, Mark P. Gergen
Florida State University Law Review
No abstract provided.
Who Are We?: The Quest For Identity In Law, Colin Jackson, Kim Brooks
Who Are We?: The Quest For Identity In Law, Colin Jackson, Kim Brooks
Dalhousie Law Journal
Scholars from Haraway to Foucault to Freud, from Bourdieu to Erikson to Scarry have theorized identity across continents and among disciplines. Despite the rich material available, however, interrogations of identity in law have remained isolated within substantive areas of law (those working on identity in evidence law have not necessarily met issue with those exploring identity in constitutional law, for example), and have been more limited in scope and imagination than the interrogations undertaken in other disciplines.
Strict Liability And Informed Consent: "Don't Say I Didn't Tell You So!", Jose E. Maldonado
Strict Liability And Informed Consent: "Don't Say I Didn't Tell You So!", Jose E. Maldonado
Akron Law Review
The purpose of this article is the cogent presentation of the arguments favoring application of contemporary strict tort liability concepts to the doctrine of informed consent. While not a panacea, adoption of this proposal would afford the consumer of medical services the requisite protection to make an effective, informed medical choice, while lending consistency and certainty to the physician, long harrassed, both morally and legally, by doubts as to what constitutes an informed consent.
This author will assume, arguendo, for the purpose of this article that all physicians are good-faith, competent practitioners. However, the reader should be forewarned: The existing …
Design Litigation And The State Of The Art: Terminology, Practice And Reform, Edward T. O'Donnell
Design Litigation And The State Of The Art: Terminology, Practice And Reform, Edward T. O'Donnell
Akron Law Review
We suggest that rather than ignore these problems, or bemoan them ineffectually, the judiciary should accept the fact that the decision to venture into the area of scientific and technological controversy' carries with it a duty to reconcile the law with the essentials of the scientific method. Some courts already have begun to do so. For instance, suggestions that the manufacturer's obligation to design a safe product necessarily must be limited by the state of the art are common in negligence, warranty and strict liability decisions alike. Unfortunately these statements usually are dicta rather than holdings. Worse, the authors of …
The Pharmaceutical Access And Prudent Purchasing Act Of 1990: Federal Law Shifts The Duty To Warn From The Physician To The Pharmacist, Michael J. Holleran R.Ph.
The Pharmaceutical Access And Prudent Purchasing Act Of 1990: Federal Law Shifts The Duty To Warn From The Physician To The Pharmacist, Michael J. Holleran R.Ph.
Akron Law Review
This article will first discuss the legislation recently enacted as part of the budget reduction package passed by Congress in late 1990 and how that legislation will affect pharmacists' liability. Second, the article will address the applicable statutes of limitation regarding pharmacists in particular and within the general area of malpractice. Third, the applicable standard of care will be explored as it pertains to pharmacists as well as physicians. Coupled with the standard of care discussion is an overview of the various theories of liability which physicians and pharmacists currently face and how these may change under the Act. Finally, …
Are We Protected From Hmo Negligence?: An Examination Of Ohio Law, Erisa Preemption, And Legislative Initiatives, Amy K. Fehn
Are We Protected From Hmo Negligence?: An Examination Of Ohio Law, Erisa Preemption, And Legislative Initiatives, Amy K. Fehn
Akron Law Review
This comment discusses the various theories of HMO liability that are emerging in other jurisdictions as well as the extent to which current Ohio law bars several of these theories. In addition, this comment also discusses ERISA's preemption of state laws related to HMO liability. Finally, this comment analyzes legislative initiatives and other forms of regulation aimed at protecting consumers from HMO abuses .
Mcmullen V. Ohio State University Hospitals: This Isn't Vegas, But Don't Tell The Courts - Playing With Percentages And The Loss-Of-Chance Doctrine, Christopher Paul Reuscher
Mcmullen V. Ohio State University Hospitals: This Isn't Vegas, But Don't Tell The Courts - Playing With Percentages And The Loss-Of-Chance Doctrine, Christopher Paul Reuscher
Akron Law Review
Part II of this note presents a background on the history of, and alternative theories to, the loss-of-chance doctrine. Part III presents the facts, procedural history, holding, and reasoning of the case. Part IV scrutinizes and assesses the court’s holding, the various public policy implications, and the future effect on medical malpractice claims. Finally, Part V concludes the paper. Essentially, the question is whether the loss-of-chance doctrine will apply when a plaintiff proves a direct causal connection between the injury and the defendant’s negligent act.
Common Ignorance: Medical Malpractice Law And The Misconceived Application Of The “Common Knowledge” And “Res Ipsa Loquitur” Doctrines, Amanda E. Spinner
Common Ignorance: Medical Malpractice Law And The Misconceived Application Of The “Common Knowledge” And “Res Ipsa Loquitur” Doctrines, Amanda E. Spinner
Touro Law Review
No abstract provided.
Distinguishing The Concept Of Strict Liability For Ultra-Hazardous Activities From Strict Products Liability Under Section 402a Of The Restatement (Second) Of Torts: Two Parallel Lines Of Reasoning That Should Never Meet, Charles E. Cantu
Akron Law Review
The cornerstone of tort law in our Anglo-American system of jurisprudence is based upon three generally accepted principles. The first is that by awarding any individual monetary damages after their injury, we can make them whole, and the second is the concept of the reasonable prudent person. The third, and the focal point of this article, is that liability is imposed, and the corresponding right to recovery is created, not because of the fact that the plaintiff is injured, but because the injury is the result of the defendant’s fault.
Fault, as each first year law student is quick to …
Six Summary Judgment Safeguards, Edward Brunet
Six Summary Judgment Safeguards, Edward Brunet
Akron Law Review
This article sets forth a more optimistic assessment of the current status of summary judgment. Numerous potential safeguards deter improper grants of summary judgment motions and serve to temper trial judges who are prone to rule favorably on summary judgment requests. While some of the safeguards act more as ineffectual clichés or slogans, others provide a set of significant deterrents to overly adventuresome treatment of Rule 56 motions. The goal of this article is to critique six possible summary judgment safeguards and, in so doing, to determine whether the state of contemporary summary judgment is as bleak as leading critics …
Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli
Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli
University of Michigan Journal of Law Reform
Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory. Starting from a position of support for the mixed-pluralistic thesis, this Article first …
Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley
Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley
Georgia Journal of International & Comparative Law
No abstract provided.
Whose Best Interest Is It Anyway?: School Administrators' Liability For Student Injury In Virginia, Alison Landry
Whose Best Interest Is It Anyway?: School Administrators' Liability For Student Injury In Virginia, Alison Landry
Catholic University Law Review
In 2012 the Supreme Court of Virginia declined to recognize a special relationship between a school’s vice principal and the school’s students. Without the third person liability that accompanies special relationships, a vice principal is allowed to put student safety at the bottom of his to-do list. This Note analyzes why the Supreme Court of Virginia’s decision in Burns v. Gagnon should have found that a special relationship existed between a vice principal and his students. Declining to recognize this special relationship has left school administrators with little risk of liability for a student’s harm. This Note discusses the few …
International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings
International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings
Georgia Journal of International & Comparative Law
No abstract provided.
Is General Negligence The New Exception To The Florida Impact Rule?, Stephan Krejci
Is General Negligence The New Exception To The Florida Impact Rule?, Stephan Krejci
Florida A & M University Law Review
The impact rule is an ancient torts doctrine that precludes recovery for emotional distress unless the victim has been physically impacted by the tortfeasor and the emotional distress grew out of that physical impact. American courts widely adopted the impact rule and it persists in a handful of states to this day. Courts give several reasons for denying these negligent infliction of emotional distress (NIED) claims and these reasons fall into three broad categories: judicial efficiency, evidence concerns, and foreseeability. This paper proposes that Florida abrogate the impact rule and switch to using a general negligence approach for NIED claims. …
Equitable Estoppel & Workers' Compensation Immunity: Why Litigants And The Courts Are Getting Ahead Of Themselves, Neil A. Ambekar
Equitable Estoppel & Workers' Compensation Immunity: Why Litigants And The Courts Are Getting Ahead Of Themselves, Neil A. Ambekar
Florida A & M University Law Review
Every U.S. jurisdiction has created a separate body of law to address workplace injuries - the workers’ compensation scheme. These no-fault systems provide employees injured on the job lost wages and medical benefits. It also immunizes employers from negligence claims arising out of most workplace accidents. This article discusses a growing phenomenon in Florida’s workers’ compensation scheme, the use of estoppel to negate employer immunity. This article lays out the various theories of estoppel—primarily judicial and equitable—that may be asserted in the context of on-thejob injury litigation. This article goes on to explain why Florida courts should refrain from application …
Foreseeability As Re-Cognition, Avihay Dorfman
Foreseeability As Re-Cognition, Avihay Dorfman
Avihay Dorfman
In these pages, I seek to advance two arguments, a negative and a positive. The negative one is that leading accounts of foreseeability in duty-of-care-analysis fail to make sense of the requirement in question. And affirmatively, I shall argue that the foreseeability requirement reflects a concern for the distinctively social form of interaction between risk-creator and risk-taker, namely, that the former could form a respectful interaction with the latter. This reconstruction of the foreseeability requirement may express the view that its moral center may be a thin form of recognition between members of a liberal society.
Reopening The Discussion Of The Loss Of Opportunity Doctrine In New Hampshire: A Look At Decisions Made In Light Of Current Times, Benjamin Lajoie
Reopening The Discussion Of The Loss Of Opportunity Doctrine In New Hampshire: A Look At Decisions Made In Light Of Current Times, Benjamin Lajoie
The University of New Hampshire Law Review
[Excerpt] “A close family member is diagnosed with late-stage breast cancer and now only has a fifteen percent chance of survival. She soon dies. Prior to her diagnosis, she had routine screenings every two years, but her previous doctor failed to detect the then existing cancer when she would have had a fifty percent chance of survival. In New Hampshire, from a legal standpoint, there has been no wrong.
This legal concept of negligent medical care that causes a patient to have a lower percentage of survival, or a less favorable outcome, is referred to as the “loss of opportunity” …
Legal Malpractice In International Business Transactions, Vincent R. Johnson
Legal Malpractice In International Business Transactions, Vincent R. Johnson
Faculty Articles
International business transactions are often unavoidably linked to specialized areas of law. Lawyers increase their risk of committing legal malpractice when representing international clients in business transactions because they may find themselves in a precarious position by accepting work they are inexperienced to perform. Moreover, a client may expand into international waters and their lawyer may not be cognizant of the legal consequences. While malpractice may be asserted through negligence, fraud, breach of contract and other failures of standard of care, failure to know the law is no excuse. However, the standard of care depends on whether the defendant acted …
Hitting A Home Run In Your Writing, David Spratt
Hitting A Home Run In Your Writing, David Spratt
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Do Black Lives Matter? Race As A Measure Of Injury In Tort Law., Alberto Bernabe
Do Black Lives Matter? Race As A Measure Of Injury In Tort Law., Alberto Bernabe
The Scholar: St. Mary's Law Review on Race and Social Justice
Courts should not recognize an injury for wrongful birth or wrongful life based on the race of the child. In Cramblett v. Midwest Sperm Bank, the petitioner contracted with a sperm bank to be artificially inseminated from an anonymous sperm donor. The petitioner selected a donor with blond hair and blue eyes. The sperm bank accidentally inseminated the petitioner with sperm from a different donor. Petitioner gave birth to a mixed-race baby girl. Two years after the birth, petitioner filed a lawsuit against the sperm bank alleging wrongful birth. The court dismissed her case, nonetheless the issue remains whether race …