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Full-Text Articles in Law

Lending A Hand: The Use Of The Mississippi Products Liability Act And Mississippi's Blood Shield Statute In Palermo V. Lifelink Found., Inc., Taylor Price Apr 2024

Lending A Hand: The Use Of The Mississippi Products Liability Act And Mississippi's Blood Shield Statute In Palermo V. Lifelink Found., Inc., Taylor Price

Mississippi College Law Review

The experience of undergoing a surgical procedure is one of the most vulnerable positions an average individual finds themselves in during his or her lifetime. The overall risk associated with this process is even greater when the surgery involves the removal or transfer of one or more of the body's organs or tissues. The principal event that concerned Palermo v. LifeLink Found., Inc. was a botched surgical operation featuring a human tissue implant performed in March 2005 on Richard Palermo. The tissue implant surgically inserted into Palermo's knee became bacterially infected shortly after the operation and required further injury, causing …


A Revisionist History Of Products Liability, Alexandra D. Lahav Dec 2023

A Revisionist History Of Products Liability, Alexandra D. Lahav

Michigan Law Review

Increasingly courts, including the Supreme Court, rely on ossified versions of the common law to decide cases. This Article demonstrates the risks of this use of the common law. The main contribution of the Article is to demonstrate that the traditional narrative about early products law—that manufacturers were not liable for injuries caused by their products because the doctrine of privity granted producers immunity from suit by the ultimate consumers of their goods—is incorrect. Instead, the doctrinal rule was negligence liability for producers of injurious goods across the United States in the nineteenth century. Courts routinely ignored or rejected privity …


Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman Apr 2023

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …


All Of The Products, None Of The Liability: Examining The Supreme Court Of Ohio's Decision In Stiner V. Amazon.Com, Inc., Danny O'Connor May 2022

All Of The Products, None Of The Liability: Examining The Supreme Court Of Ohio's Decision In Stiner V. Amazon.Com, Inc., Danny O'Connor

University of Cincinnati Law Review

No abstract provided.


The Unidentified Wrongdoer, Ronen Perry Jan 2022

The Unidentified Wrongdoer, Ronen Perry

Georgia Law Review

This Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, …


The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz Jan 2022

The In Rem/In Personam Distinction And Partitioning For Persistence, Shyamkrishna Balganesh, Leo Katz

Faculty Scholarship

In the second of his two famous articles, Hohfeld seeks to do for the in rem/in personam distinction what he did so persuasively in his first for the terminology of rights, claims, duties, privileges, powers, immunities, and disabilities, which was to identify their essence, and to thereby describe the “natural kind” (in more modern parlance) lurking beneath the thicket of confused juristic rhetoric. The thesis in this second article, however, is a simpler and in some way more beguiling one than in his first. He claims that what the distinction between in rem and in personam jural relations comes down …


The New "Web-Stream" Of Commerce: Amazon And The Necessity Of Strict Products Liability For Online Marketplaces, Margaret E. Dillaway Jan 2021

The New "Web-Stream" Of Commerce: Amazon And The Necessity Of Strict Products Liability For Online Marketplaces, Margaret E. Dillaway

Vanderbilt Law Review

Technology company Amazon has actively transformed into an e-commerce giant over the last two decades. Once a simple online bookstore, Amazon now boasts an ever-expanding identity as global cloud computing provider, major player in artificial intelligence, brick-and-mortar grocery store, and producer of original video content. At its roots, the company remains focused on e-commerce—its multibillion-dollar online marketplace hosts a massive digital space for commerce worldwide where customers can order “anything, with a capital A.”

Amazon derives many of its sales from third-party vendors who list products on the company’s website, Amazon.com. In this broadening chain of distribution for online retail, …


From Liability Shields To Democratic Theory: What We Need From Tort Theory Now, Heidi Li Feldman Jan 2021

From Liability Shields To Democratic Theory: What We Need From Tort Theory Now, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

Among possible legal responses to a pandemic, quashing tort liability might seem startling. Common sense indicates that a deadly and debilitating disease would call for possible tort liability, to enable recovery for losses by those subjected to the disease because of others’ carelessness while also discouraging careless conduct that could lead to preventable cases illness in the first place. Yet, when faced with SARS-CoV-2 and COVID-19, the life-threatening disease caused by the virus, the first response of many American lawmakers was to enact, or attempt to enact, COVID-19 “liability shield” statutes. These laws introduced doctrine to eliminate or narrow grounds …


Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar Jan 2021

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …


Rios V. Bayer: The Illinois Supreme Court Recognizes Bristol-Myers Squibb, Jamison Winters Nov 2020

Rios V. Bayer: The Illinois Supreme Court Recognizes Bristol-Myers Squibb, Jamison Winters

SLU Law Journal Online

Madison County, Illinois is a favorite venue among forum shoppers. Jamison Winters discusses how, by recognizing Bristol-Myers Squibb’s narrowing of the relatedness standard in specific personal jurisdiction, the recent Illinois Supreme Court decision in Rios v. Bayer may work to discourage forum shopping in venues like Madison County.


The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey Apr 2020

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …


Nothing Generic About It: Promoting Therapeutic Access By Overcoming Regulatory And Legal Barriers To A Robust Generic Medical Device Market, Megan S. Wright, Zachary Shapiro, Adam Pan, Keturah James, Joseph Fins Jan 2020

Nothing Generic About It: Promoting Therapeutic Access By Overcoming Regulatory And Legal Barriers To A Robust Generic Medical Device Market, Megan S. Wright, Zachary Shapiro, Adam Pan, Keturah James, Joseph Fins

Journal Articles

This Article addresses a paradox in American healthcare technology: a thriving market for generic drugs but a paucity of generic medical devices. Despite the success of generic pharmaceuticals in reducing healthcare costs, no analogous market exists for generic medical devices. This plays a part in keeping prices high while limiting access to affordable therapies. In this Article, we highlight the regulatory and legal barriers currently impeding the development of a generic medical device market in the United States. We explore differences between generic drugs and generic devices in FDA regulation, products liability, and patentability, all of which contribute to the …


The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman Jan 2020

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply …


A Scholarly Life In Vistas: Marshall Shapo's Products Liability, Mary J. Davis Jan 2020

A Scholarly Life In Vistas: Marshall Shapo's Products Liability, Mary J. Davis

Law Faculty Scholarly Articles

To read and reread Professor Marshall Shapo’s products liability scholarship is to learn the important lesson of how to build a body of work that continually sees the same landscape from fresh vistas. Like watching the same landscape from different angles, during different seasons, and over several years, Professor Shapo’s vistas provide us with a remarkably vivid view of the products liability landscape over the past fifty years and beyond. In doing so, he has constructed a vision of the richness and promise of products liability law while continually reminding us to be aware of the vista from which we …


Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel Jul 2019

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

W. Bradley Wendel

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but …


A Conceptual And Comparative Analysis Of The Obligations Of Third-Party Certifiers, Jan De Bruyne Mar 2019

A Conceptual And Comparative Analysis Of The Obligations Of Third-Party Certifiers, Jan De Bruyne

Ohio Northern University Law Review

No abstract provided.


Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker Jan 2019

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.


Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch Jan 2019

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

Scholarly Works

On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …


The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue Jan 2019

The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue

Journal of Law and Mobility

This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will …


High Times Ahead: Products Liability In Medical Marijuana, Steven B. Perlmutter Jan 2019

High Times Ahead: Products Liability In Medical Marijuana, Steven B. Perlmutter

Health Matrix: The Journal of Law-Medicine

No abstract provided.


Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel Oct 2018

Economic Rationality And Ethical Values In Design-Defect Analysis: The Trolley Problem And Autonomous Vehicles, W. Bradley Wendel

Cornell Law Faculty Publications

The trolley problem is a well-known thought experiment in moral philosophy, used to explore issues such as rights, deontological reasons, and intention and the doctrine of double effect. Recently it has featured prominently in popular discussions of decision making by autonomous vehicle systems. For example, a Mercedes-Benz executive stated that, if faced with the choice between running over a child that had unexpectedly darted into the road and steering suddenly, causing a rollover accident that would kill the driver, an automated Mercedes would opt to kill the child. This paper considers not the ethical issues raised by such dilemmas, but …


Steering (Or Not) Through The Social And Legal Implications Of Autonomous Vehicles, Melissa L. Griffin Mar 2018

Steering (Or Not) Through The Social And Legal Implications Of Autonomous Vehicles, Melissa L. Griffin

The Journal of Business, Entrepreneurship & the Law

No abstract provided.


Duty, Foreseeability, And Montemayor V. Sebright Products, Inc., Mike Steenson Jan 2018

Duty, Foreseeability, And Montemayor V. Sebright Products, Inc., Mike Steenson

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.


The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer Jan 2018

The Computer Made Me Do It: Is There A Future For False Claims Act Liability Against Electronic Health Record Vendors?, Deborah R. Farringer

Law Faculty Scholarship

Since the advent of the movement toward the use of electronic medical records, an axiom in the promotion of electronic health records (EHRs) has been the idea that the use of EHRs will reduce medical errors. Certainly, there are countless examples of how technology can improve the health care experience and aid providers in reducing medical errors, including errors of medication administration, medication management, access to decision support tools, telemedicine, immediate access to diagnostic tests and other clinical information and treatment results—just to name a few. Even with such improvements, however, EHRs have not entirely eliminated medical errors and new …


When The Feds Have Taken The Field: Federal Field Preemption Of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval By The Fda, Charles Warren Sep 2017

When The Feds Have Taken The Field: Federal Field Preemption Of Claims Against Manufacturers Whose Medical Devices Have Received Premarket Approval By The Fda, Charles Warren

Oklahoma Journal of Law and Technology

No abstract provided.


The Second Amendment & Private Law, Cody Jacobs Jul 2017

The Second Amendment & Private Law, Cody Jacobs

Faculty Scholarship

The Second Amendment, like other federal constitutional rights, is a restriction on government power. But what role does the Second Amendment have to play—if any—when a private party seeks to limit the exercise of Second Amendment rights by invoking private law causes of action? Private law—specifically, the law of torts, contracts, and property—has often been impacted by constitutional considerations, though in seemingly inconsistent ways. The First Amendment places limitations on defamation actions and other related torts, and also prevents courts from entering injunctions that could be classified as prior restraints. On the other hand, the First Amendment plays almost no …


Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler Jun 2017

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation …


Defective Punitive Damage Awards, Jill W. Lens Mar 2017

Defective Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights. 

This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of …


Gun Control Through Tort Law, Richard C. Ausness Jan 2017

Gun Control Through Tort Law, Richard C. Ausness

Law Faculty Scholarly Articles

I have been asked to respond to an article by Professor Andrew Jay McClurg that recently appeared in the Florida Law Review. In this article, the author, a longtime advocate of firearms regulation, argues that owners and commercial sellers of firearms who negligently fail to secure them against theft should be held liable when persons are killed or injured by firearms used in the commission of a crime.

In the past, believing that existing federal and state laws were inadequate to halt the spread of gun-related deaths and injuries, proponents of stricter gun control measures proposed a number of tort …


Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey Apr 2016

Judicial Experimentation With A Strict Products Liability Rule: A Comparison Of The Law In The United Kingdom, Louisiana, And United States' Common Law Jurisdictions, Thomas E. Carbonneau, Catherine Garvey

Thomas Carbonneau

Since the mid-nineteenth century, products liability law has undergone significant modifications. The applicable doctrine has oscillated between contract and tort theories; fault and no-fault liability schemes have competed for predominance. Despite attempts to create an internationally accepted liability norm, different legal systems continue to espouse differing perceptions of the liability formula in the products area. In addition, even in jurisdictions in which courts adhere to identical liability theories, there is disagreement as to the application and implications of the same standard. This article attempts to set the shifting doctrinal character of products liability analysis into a comparative perspective principally between …