Civil Law Commons^™

When Speech Isn't Free: Legal Barriers And Consequences Of Reporting Sexual Violence, Kevin M. Fleming

Departmental Honors Projects

Incidents of sexual violence continue to be a serious problem for society. Likewise, acts of sexual violence impose severe consequences for survivors. The consequences initially begin at the onset of the survivor’s journey to psychological recovery following the traumatic sexual assault. The consequences take on a unique set of characteristics when the survivor attempts to use the justice system to confront the perpetrator who committed the offense. These characteristics can transform an adversarial process into an isolated battle for the survivor. In the worst cases, the justice system empowers individuals who wish to silence survivors with free speech restrictions instead …

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Beneath The Surface Of Civil Recourse Theory, Martha Chamallas

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Civil Recourse Defended: A Reply To Posner, Calabresi, Rustard, Chamallas, And Robinette, John C. Goldberg, Benjamin Zipursky

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Civil Recourse Theory's Reductionism, Guido Calabresi

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Two Roads Diverge For Civil Recourse Theory, Christopher J. Robinette

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Truman V. Thomas: The Rise Of Informed Refusal, Thomas M. O'Neil

Pepperdine Law Review

Truman v. Thomas addresses the issue of whether or not a physician must inform a patient of the possible consequences of her refusal to submit to a diagnostic test. The California Supreme Court has determined that a physician has such a duty, and the author provides an examination of this decision and a view of previous case law in the area of informed consent. Although increasing the physician's burden of disclosure, the decision can be seen as a continuation of the trend of cases allowing patients more control over the care of their own bodies.

Police Shootings - Administrative Law As A Method Of Control Over Police: Peterson V. City Of Long Beach, James Wright

Pepperdine Law Review

Professor Kenneth Davis has long advocated that police manuals should be viewed as interpretative administrative rules, which would guide police in their daily activities. He argued that police departments should not fear adopting interpretative rules because such rules would not be binding; therefore, the department would not be subject to tort liability if an officer violated such a rule. In Peterson v. City of Long Beach, a police officer violated the police manual when he shot and killed a non-violent fleeing suspect. The California Supreme Court, in an opinion by Justice Frank Newman, cited Professor Davis and his call for …

The United States Government As Defendant - One Example Of The Need For A Uniform Liability Regime To Govern Outer Space And Space-Related Activities, Joseph A. Bosco

Pepperdine Law Review

No abstract provided.

Intramilitary Tort Immunity: A Constitutional Justification , Kevin M. Fillo

Pepperdine Law Review

No abstract provided.

Constitutional Restraints On The Doctrine Of Punitive Damages, Theodore B. Olson, Theodore J. Boutrous Jr.

Pepperdine Law Review

No abstract provided.

Tort Arbitrage, Robert J. Rhee

Florida Law Review

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the economic theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the …

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

Bareboat Charters: Can A Shipowner Limit Liability To Third Parties? Answers For Owners Attempting To Navigate The Unsettled Waters In The Eleventh Circuit, John W. Chitty

Georgia State University Law Review

A bareboat charter is a contractual agreement akin to the lease of a vessel whereby most of the “customary liabilities” of the owner are shifted to the charterer. Some courts have raised concerns over bareboat charters—also referred to as a demise charter—regarding the ability of owners to use the bareboat device as a means to limit liability to injured third parties.

In Baker v. Raymond International, Inc. the Fifth Circuit brought force to this concern; the court held a bareboat charter would no longer shield owners from personal liability for third party injuries caused by the unseaworthiness of a vessel, …

Mass Disaster Mediation: Innovative, Adr, Or A Lion's Den?, Elizabeth Baker Murrill

Pepperdine Dispute Resolution Law Journal

Mass torts and other mass claims are becoming an ever more popular forum for the use of alternative dispute resolution to resolve parties' claims in the wake of events that produce thousands of conflicts overnight. Mediation, in particular, has been used in several high-profile mass disaster events in an effort to resolve individual claims efficiently and quickly. This paper evaluates special risks posed in this kind of mediation that can go to the heart and the integrity of the mediation process. The thesis of this paper is that the potential imbalance in the parties' experience, education, and individual situation can …

An Unnecessary Consternation: An Analysis Of The Future Of Eu Arbitration In The Wake Of The West Tankers Decision, Mark G. Materna

Pepperdine Dispute Resolution Law Journal

This article proposes that, despite the West Tankers decision, parties are still not free to breach the terms of an arbitration agreement. On the contrary, there has been a strong trend by English courts to find ways of preventing parties from breaching such agreements. In short, this article serves to quell the panic and elucidate that the West Tankers decision is not a nail in the coffin, but rather a mechanism to reiterate European courts' dedication to ensuring that arbitration provisions remain a potent force against economic infidelity. Part II of this article will provide a brief background of anti-suit …

The Assault Of Jamie Leigh Jones: How One Woman's Horror Story Is Changing Arbitration In America, Jeffrey Adams

Pepperdine Dispute Resolution Law Journal

This article examines Jones v. Halliburton Co., the "Al Franken Amendment" to the 2010 U.S. Defense Department Budget (Franken Amendment) that was created in response to Jones, and the impact that both could have on mandatory arbitration clauses in employment contracts in the future. Part II recounts the troubling events that led to Jones and the inclusion of the Franken Amendment in the 2010 Defense Department Budget. Part III details the arguments made for and against the inclusion of the Franken Amendment. Part IV analyzes the impact that the Franken Amendment could have on mandatory arbitration clauses in contacts in …

Picture This: Congress Doing The Decent Thing Permitting The Victims Of Their Ex-Lover's Cyberbullying To Go To Court Under A Revised Communications Decency Act., John V. Kelly

Student Works

No abstract provided.

Palsgraf, Punitive Damages, And Preemption, Benjamin C. Zipursky

Faculty Scholarship

This Article utilizes civil recourse theory along with a pragmatic conceptualist methodology to solve three problems in tort law: one on Palsgraf v. Long Island Railroad Co., one on punitive damages (as seen in the Supreme Court’s struggles with Philip Morris v. Williams), and one on federal preemption (as seen in the Supreme Court’s 4-4 deadlock in Warner-Lambert Company v. Kent). Confusion has been generated by a failure to recognize that -- despite the many aspects of tort law that render it importantly public -- there is something distinctively private about the common law of torts. When one firmly rejects …

Yangge Dance: The Rhythm Of Liability For Medical Malpractice In The People's Republic Of China, Zhu Wang, Ken Oliphant

Chicago-Kent Law Review

This paper summarises the development of liability for medical malpractice in the People's Republic of China, beginning with the establishment of a formal system of administrative liability in 1987, its refinement in 2002, and the broadly contemporaneous judicial recognition of a concurrent tortious liability under general civil law. All these developments may be said to have furthered the interests of patients. The incorporation of liability for medical malpractice into the Tort Liability Law of 2009, however, arguably marks a step backwards, subordinating the interests of patients in favor of the interests of the medical community, and further reforms in the …

To Dollars From Sense: Qualitative To Quantitative Translation In Jury Damage Awards, Valerie P. Hans, Valerie F. Reyna

Cornell Law Faculty Publications

This article offers a new multistage account of jury damage award decision making. Drawing on psychological and economic research on judgment, decision making, and numeracy, the model posits that jurors first make a categorical gist judgment that money damages are warranted, and then make an ordinal gist judgment ranking the damages deserved as low, medium, or high. They then construct numbers that fit the gist of the appropriate magnitude. The article employs data from jury decision-making research to explore the plausibility of the model.

Splitting The Baby: Standardizing Issue Class Certification, Jenna G. Farleigh

Vanderbilt Law Review

The Bible depicts King Solomon resolving a dispute between two women who claimed to be the mother of the same child. In the pursuit of justice, King Solomon threatened to do the unthinkable- slice the child in two. Although severing children is not a recommended vehicle for justice, severing lawsuits is. In fact, in the class-action context, the "issue class" established by Federal Rule of Civil Procedure 23(c)(4) does just what King Solomon threatened-it severs litigation into pieces, allowing aggregate treatment of only certain issues in a given lawsuit. Residual issues are left to be determined in plaintiff-specific, follow-on suits. …

Anand V. Kapoor, David Pepper

NYLS Law Review

No abstract provided.

The Alien Tort Statute And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia Jr.

Journal Articles

Courts and scholars have struggled to identify the original meaning of the Alien Tort Statute (ATS). As enacted in 1789, the ATS provided "[t]hat the district courts...shall...have cognizance...of all causes where an alien sues for tort only in violation of the law of nations or a treaty of the United States." The statute was rarely invoked for almost two centuries. In the 1980s, lower federal courts began reading the statute expansively to allow foreign citizens to sue other foreign citizens for all violations of modern customary international law that occurred outside the United States. In 2004, the Supreme Court took …

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …

Forgotten Namesake: The Illinois Good Samaritan Act's Inexcusable Failure To Provide Immunity To Non-Medical Rescuers, 43 J. Marshall L. Rev. 1097 (2010), David Weldon

UIC Law Review

No abstract provided.

The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …

Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …

Election Of Remedies In The Twenty-First Century: Centra Health, Inc. V. Mullins, L. Steven Emmert

University of Richmond Law Review

No abstract provided.

Civil Practice And Procedure, Hon. Jane Marum Roush

University of Richmond Law Review

No abstract provided.