Law Commons^™

Misfeasance In Public Office And Three Rivers District Council V The Bank Of England: The Collapse Of Bcci, Noel Cox

Noel Cox

The tort of misfeasance in public office is designed to target “the deliberate and dishonest abuse of power”. Public officers are not liable merely because a bona fide administrative act is later found to be unlawful. But there is a misfeasance in public office if a person suffers loss or damage as a result of administrative action known to be unlawful by those persons taking it, and those persons knew that the claimant would suffer loss or were recklessly indifferent as to whether the claimant would suffer loss. A deliberate and vindictive act by a public official, targeted at the …

Medical Malpractice Reform In Three Southern States, Leonard J. Nelson, Michael A. Morrisey, Meredith L. Kilgore

Leonard J. Nelson III

Louisiana, Alabama, and Mississippi have adopted medical malpractice reform legislation in response to the three crises in medical liability insurance. In 1975, Louisiana adopted damages caps, created a patient compensation fund, and mandated the submission of claims to screening panels. In 1987, Alabama adopted damages caps and modified the collateral source rule, but these reforms were declared unconstitutional in the 1990s. In 2002, Mississippi adopted a damages cap. In this article we review the effect of these reforms on the malpractice environment in each state. We find that based on the total value of paid claims and paid claims per …

Judging Plaintiffs, Jason M. Solomon

Scholarly Works

With its powerful account of the normative principles embodied in the structure and practice of the law of torts, corrective justice is considered the leading moral theory of tort law. It has a significant advantage over instrumental and other moral theories in that it is more consistent with what judges say when they analyze tort law concepts. And with criticism of instrumental accounts, like law and economics, on a number of fronts, it is the leading descriptive theory of tort law.

In this Article, I take up a question that has never been answered adequately by corrective-justice or other moral …

The Battle Over Implied Preemption: Products Liability And The Fda, Mary J. Davis

Law Faculty Scholarly Articles

A mere five years ago, the Food and Drug Administration (the "FDA") began, for the first time in its 100-year history, to take the position that its prescription drug labeling regulations defeated the ability of injured plaintiffs to pursue common law tort claims based on the adequacy of the labeling. This position, radical to many and rational to others, places federal preemption of prescription drug labeling actions directly in the center of the debate over the proper roles of federal regulation and state tort laws in promoting product safety. The U.S. Supreme Court has contributed to this debate with several …

State Antidiscrimination Statutes And Implied Preemption Of Common Law Torts: Valuing The Common Law, Jared S. Gonzalez

South Carolina Law Review

No abstract provided.

The Human Factor: Globalizing Ethical Standards In Drug Trials Through Market Exclusion, Fazal R. Khan

Fazal Khan

This paper proposes a framework of international soft law and domestic drug regulations to a priori remove incentives for unethical clinical drug research in developing nations. The globalization of drug testing is very problematic from a bioethics perspective. While stringent regulations in the U.S. or E.U. may pose an adequate check on unethical research practices, many multinational corporations are engaging in regulatory arbitrage by outsourcing ethically questionable research to countries with less restrictive regulations. Given the tremendous financial reward a blockbuster therapy might generate, there is a strong incentive to move more research and development to countries with even looser …

The Principles Of Product Liability, In Symposium, Products Liability: Litigation Trends On The 10th Anniversary Of The Third Restatement, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Palsgraf Revisited (Again), Joseph W. Little

The University of New Hampshire Law Review

[Excerpt] “A funny thing happened at the 2005 meeting of the American Law Institute in Philadelphia. With hardly a thought as to the profundity—and probable futility—of its act, the assemblage bulldozed one of the enduring nuggets of common law wisdom to the pile of discarded relics of legal history.

Apart from those in personal injury work, most lawyers won’t remember too many specifics about their first year law school torts courses. But if I had to bet on a single common law judicial opinion that is likely to stimulate a flicker of recognition in many memories—by specifying common law, I …

The Perfect Storm? International Trade In American-Style Tort Litigation, David L. Wallace

David L. Wallace

No abstract provided.

Tax Malpractice Damages: A Comprehensive Review Of The Elements And The Issues, Jacob L. Todres

Jacob L. Todres

ABSTRACT & TABLE OF CONTENTS

Tax Malpractice Damages: A Comprehensive Review Of The Elements And The Issues

Suits to redress instances of tax malpractice may be framed either in tort or in contract. While some ancillary aspects of the litigation may differ, a professional must exercise reasonable competence and diligence to avoid malpractice liability under either approach. The same basic standards apply to attorneys and accountants. Typically the tort of negligence will be the key to any recovery, though other causes of action are also encountered.

Damages are normally recoverable for all injuries proximately caused by the malpractice, consequential as …

I'M A Lawyer Too--Memoirs Of The Ambitious Legal Writing Professor, Prentice L. White

Prentice L White

I’M A LAWYER TOO—MEMOIRS OF THE AMBITIOUS LEGAL WRITING PROFESSOR ABSTRACT Legal Writing professors are faced with so many challenges and hurdles in the world of academia. Our salaries are lower, our offices are smaller, and our work schedules with students are much more tedious than that of tenure and tenure-track faculty members. However, there is another hurdle that is not as obvious as the other challenges, but it is the most serious hurdle we have ever faced—proving that we too are lawyers and not simply writing teachers. There are so many stereotypes in our profession that we sometimes have …

Saving Savings Clauses From Judicial Preemption, Sandra Zellmer

Sandi Zellmer

Savings clauses can be found in an array of federal statutes governing public health, welfare, and environmental quality. Like explicit preemption provisions, the function of a savings clause is to differentiate the boundaries of federal and state authority. Unlike preemption clauses, however, savings clauses strike the balance in favor of the states and state law remedies. Despite the existence of savings clauses, many of the Supreme Court’s recent preemption opinions have invalidated state laws that are more stringent than the federal regulatory threshold, based on a crabbed interpretation of statutory language, a myopic view of congressional purposes, or both. Even …

Punitive Damages And The Tobacco Industry: New Guidelines From The U. S. Supreme Court, Jean M. Eggen

Jean M. Eggen

No abstract provided.

The Principles Of Product Liability, In Symposium, Products Liability: Litigation Trends On The 10th Anniversary Of The Third Restatement, Richard W. Wright

Richard W. Wright

No abstract provided.

What Weyerhaeuser Suggests For Punitive Damages, Nickolai G. Levin

Nickolai G. Levin

In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 127 U.S. 1069 (2007), the Supreme Court addressed the antitrust claim of “predatory bidding”—i.e., that a manufacturer paid too much for an “input.” Although the Ninth Circuit allowed predatory-bidding liability to be based on the jury’s subjective estimation that the defendant paid more than “necessary” for an input, the Supreme Court reversed, holding that the objective, two-part “predatory pricing” test from Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209 (1993), should govern predatory-bidding claims instead. Otherwise, the Court explained, there would be a serious risk of chilling procompetitive …

Punitive Damages Claims And The Illinois Survival Act, Catherine M. Masters

Catherine M Masters

Abstract: Under the common law, which is the law of Illinois unless modified by the legislature, all claims abated on the death of the claimant. The Illinois legislature chose to enact limited modifications of the common law, allowing only compensatory and not punitive damages in survival and wrongful death actions. The Illinois Supreme Court has repeatedly interpreted the terms of the Survival Act and Wrongful Death Act as authorizing only compensatory damage claims. By reenacting the statutes subsequent to this judicial interpretation, and by rejecting amendments to allow punitive damages, the legislature has confirmed and ratified the Illinois Supreme Court’s …

The Death Of Strict Liability, Peter M. Gerhart

Peter M. Gerhart

Abstract This article argues that strict liability is an unjustified and superfluous doctrine. The law ought to collapse strict liability into the negligence concept by asking whether the injurer made unreasonable decisions about where, when, how, and how often to undertake activity. My analysis disputes several assertions from the economic analysis of strict liability, particularly the assertion that all harmful frequency level decisions ought to be the source of liability and the assertion that the reasonableness test is not robust enough to challenge wrongful activity-based decisions. Normatively, I argue that both deontic and consequential justice require that losses be shifted …

Green Medicine: Using Lessons From Tort Law And Environmental Law To Hold Pharmaceutical Manufacturers And Authorized Distributors Liable For Injuries Caused By Counterfeit Drugs, Stephanie Feldman Aleong

Stephanie Feldman Aleong

Counterfeit and adulterated prescription drugs have caused serious harm to consumers when these tainted products have easily permeated the legitimate marketplace over the last decades. Criminals and other actors introduce fake, adulterated, expired and foreign drugs into the drug distribution network which puts unsafe medicine into the hands of innocent consumers.

Due to the FDA’s identification of the dramatic rise in counterfeit drug investigations, in June of 2006, the FDA finally lifted the nearly twenty-year-old stay on requiring pedigree documentation, an actual history of the distribution transactions of a medicine before reaching a dispensing pharmacy, only to find that a …

If The Glove Don’T Fit, Try Newer Gloves: The Unplanned Obsolescence Of The Substantial Similarity Standard For Experimental Evidence, Jonathan M. Hoffman

Jonathan M Hoffman

In the context of a recent Fifth Circuit decision, this article reviews the law concerning the admissibility of “experimental” and demonstrative evidence. The standards used to determine the admissibility of both categories of evidence predate the Federal Rules of Evidence. These standards for admission of such evidence are obsolete and at odds with the Federal Rules. The issue is particularly important in the wake of the Kumho Tire decision and the 2000 amendments to Federal Rule of Evidence 702, as engineers and other technical experts are increasingly called upon to test their hypotheses, even as the courts’ continued use of …

Reasonableness, Justice And The No-Duty-To-Rescue Rule Of Torts, Alan Calnan

Alan Calnan

The no-duty-to-rescue rule says that people are not required to rescue others in distress. Thus, someone who fails to offer aid cannot be held civilly liable if the victim later succumbs to the danger. This liability exemption applies no matter how grave the risk facing the victim, and no matter how simple, easy and safe the rescue opportunity for the bystander. To most people, the no-duty-to-rescue rule seems clearly at odds with the concept of moral fault. Instinctively, it feels wrong to stand idly by as another human being suffers harm. This instinct could be rooted in a number of …

Do Judges Systematically Favor The Interests Of The Legal Profession? , Benjamin H. Barton

College of Law Faculty Scholarship

This Article answers this question with the following jurisprudential hypothesis: many legal outcomes can be explained, and future cases predicted, by asking a very simple question, is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment …

Do Judges Systematically Favor The Interests Of The Legal Profession? , Benjamin H. Barton

College of Law Faculty Scholarship

This Article answers this question with the following jurisprudential hypothesis: many legal outcomes can be explained, and future cases predicted, by asking a very simple question, is there a plausible legal result in this case that will significantly affect the interests of the legal profession (positively or negatively)? If so, the case will be decided in the way that offers the best result for the legal profession.

The article presents theoretical support from the new institutionalism, cognitive psychology and economic theory. The Article then gathers and analyzes supporting cases from areas as diverse as constitutional law, torts, professional responsibility, employment …

When Should Courts Pierce The Veil Protecting Aircraft Financiers?, David Wickersham

David K Wickersham

This article examines the liability of aircraft owners and lessors for the negligence of the actual operators of those aircraft. A federal statute intended to promote and foster civil aviation has been misapplied and misinterpreted by the courts, and this has neither increased air safety nor fostered growth in civil aviation.

Florida's Wrongful Death Act: Should Grandparents And Persons Standing In Loco Parentis Be Permitted To Recover Damages?, Jonah Levine

Jonah M Levine

This paper discusses whether grandparents and persons standing in loco parentis may recover for the wrongful death of their grandchildren and wards, respectively. Part II of this paper will discuss recovery for wrongful death at common law and by statute in the United States and in England. Part II of this paper will also discuss state statutes that either expressly permit grandparents or persons standing in loco parentis to recover or permit them to recover through intestate succession. Part III will analyze state case law where grandparents and persons standing in loco parentis were either permitted or denied recovery for …

The Rescue Doctrine Following The Advent Of Comparative Negligence In South Carolina, Yasamine J. Christopherson

South Carolina Law Review

No abstract provided.

Introductory Remarks: Explaining Tort Law, Michael S. Green

William & Mary Law Review

No abstract provided.

Limited Joint And Several Liability Under Section 15-38-15: Application Of The Rule And The Special Problem Posed By Nonparty Fault, Joshua D. Shaw

South Carolina Law Review

No abstract provided.

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Disparities Between Asbestosis And Silicosis Claims Generated By Litigation Screenings And Clinical Studies, Lester Brickman

Lester Brickman

In 2005, U.S. District Court Judge Janis Jack, presiding over an MDL proceeding involving 10,000 claims of silicosis emanating from litigation screenings, issued a 264 page opinion rejecting the reliability of thousands of medical reports generated by those screenings. Before issuing her opinion, she ordered a Daubert hearing to assess the reliability of these medical reports which had been issued by a handful of doctors. In furtherance of this unprecedented use of a Daubert hearing in a mass tort proceeding, she compelled the production of a large volume of evidence, under threat of contempt, that the screening companies and doctors …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline Lipton

Jacqueline D Lipton

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …