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 …

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 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 …

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 …

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 …

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 …

Somebody Has To Pay: Products Liability For Spyware, Jacob R. Kreutzer

Jacob R Kreutzer

It can be unsettling to discover that you have spyware (software that tracks user behavior and displays advertisements) installed on your computer. The signs of its presence can vary: a new toolbar may appear in your browser, or you may experience a proliferation of pop up advertisements. Whatever the symptoms, the cause is the same: a piece of software that was inconspicuous (or invisible) at the time of its installation is now dedicating itself to disrupting your use of your computer. A persistent consumer will likely be able to identify spyware that is present on his computer, whether through technological …

Collective Myopia, Ronen Avraham, Kiwi Camara

ronen avraham

Collective myopia is a widespread but poorly understood problem that causes classes of similarly situated investors to underinvest in prospectively efficient improvements like education, capital, and preventive medical care. We introduce the concept of collective myopia, describe it, offer several solutions to it, and identify and discuss the real-world conditions that affect these solutions’ relative desirability. We apply our analysis to health insurance, prescribing a mandatory-membership clearinghouse, to be created by federal legislation, that would require its insurer members to cover prospectively efficient treatments identified by vote of the insurer members and, when an insured switches from one insurer member …

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark Boyko, Ryan Vacca

Mark Boyko

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. This situation is not uncommon. Toxic exposure cases represent a prime example where defendants are likely to have improvements before learning of a plaintiff's injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet admitting this evidence may not have the same chilling effect …

Punitive Damages And Valuing Harm, Alexandra B. Klass

Alexandra B. Klass

In 2003, the Supreme Court created a presumption that only single-digit ratios of punitive damages to compensatory damages would satisfy substantive due process limits. The exception to this presumption is when the defendant’s misconduct results in only a small amount of compensatory damages or when harm is difficult to value. This Article proposes that while lower courts have properly departed from single-digit ratios where the compensatory damage are small, they have had more difficulty doing so when harm is difficult to value. As a result, lower courts are mechanically applying a single-digit ratio in cases where the Court’s current framework …

Arbitrating Human Rights, Roger P. Alford

Roger P. Alford

Currently domestic human rights litigation against corporations appears to be a proxy fight in which the accomplice is pursued while the principal evades punishment. Typically the principal malfeasor—the sovereign—is immune from suit because of foreign sovereign immunity. But corporations can be found liable for aiding and abetting those violations. This article suggests a solution to this problem, drawing on principles from contract law and arbitration. If a corporation is found liable for aiding and abetting sovereign abuse, it may invoke contractual provisions in the agreement with the sovereign to arbitrate the question of shared responsibility. While the victims may not …

Sample Prescription Drugs And The "Learned Intermediary": Liability Without Preemption, Susan Poser

Susan Poser

Democracy And Tort Law In America: The Counter-Revolution, Christopher J. Roederer

Christopher J. Roederer

Although the seeds of democracy and democratic tort reform were sown well before America’s founding, neither began to blossom until after the Second World War. Democratic progress from the 1950s to the 1970s led to, and was in part consolidated by, progressive developments in tort law during the same period. Unfortunately, the last quarter century has been a period of democratic decay in America and just as the revolution in tort law was bound up with democratic progress, the counter-revolution in tort law has tracked and reinforced the waning of American democracy since the 1980s. Although a few authors have …

Alchemy In The Courtroom? The Transmutation Of Public Nuisance Litigation, Richard O. Faulk, John S. Gray

Richard Faulk

This Article continues our study of the public nuisance controversy regarding lead paint. Although lead paint cases are certainly not the only claims where public nuisance principles are being advocated, they are the most conspicuous claims, and they have attracted the most attention from advocates, courts, and commentators. For that reason, we have focused on the lead paint paradigm. Moreover, as will be seen, the allegations asserted in these claims are not unique to lead paint but can be applied generically by ingenious counsel to virtually any product or conduct imaginable. Hence, examining the lead paint controversy provides insight into …

Policy Oscillation In California's Law Of Premises Liability, Ronald L. Steiner

Ronald L. Steiner

The expansion of tort liability beginning in the middle of the 20th century, and the reaction against that expansion as the century came to a close, constitutes a clear demonstration of the nostrum that tort law is “public law in disguise.” Adjudication of private disputes became a battleground of public policy preferences as to how risks and compensation should be distributed so as to serve societal interests such as fairness, efficiency, and personal autonomy. This article studies examines in detail a critical battleground in a key state, the revolution and counter-revolution in premises liability in California, as a paradigm case. …