Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Seattle University School of Law (195)
- University of Michigan Law School (157)
- Pepperdine University (36)
- Yeshiva University, Cardozo School of Law (33)
- Cleveland State University (24)
-
- UIC School of Law (21)
- Washington and Lee University School of Law (18)
- Brooklyn Law School (16)
- University of Georgia School of Law (16)
- American University Washington College of Law (15)
- BLR (15)
- Villanova University Charles Widger School of Law (12)
- Cornell University Law School (10)
- Roger Williams University (10)
- Georgia State University College of Law (9)
- St. Mary's University (9)
- Vanderbilt University Law School (9)
- University of Colorado Law School (8)
- Chicago-Kent College of Law (6)
- University of Richmond (6)
- Duke Law (5)
- Fordham Law School (5)
- New York Law School (5)
- University at Buffalo School of Law (5)
- Loyola Marymount University and Loyola Law School (4)
- University of Maine School of Law (4)
- University of Washington School of Law (4)
- West Virginia University (4)
- University of Cincinnati College of Law (3)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (3)
- Keyword
-
- Damages (107)
- Remedies (58)
- Torts (54)
- Liability (52)
- Negligence (47)
-
- Injuries (44)
- Compensation (42)
- Punitive damages (37)
- Personal injury (25)
- Tort (20)
- Law reform (19)
- Products liability (19)
- Law (15)
- Regulation (15)
- Compensatory damages (14)
- Recovery (14)
- United States Supreme Court (14)
- Tort reform (13)
- Victims (13)
- Insurance (12)
- Litigation (12)
- Strict liability (12)
- Contracts (11)
- Courts (11)
- Legislation (11)
- California (10)
- Constitutional Law (10)
- Corporations (10)
- First Amendment (10)
- Restitution (10)
- Publication Year
- Publication
-
- Seattle University Law Review (195)
- Michigan Law Review (80)
- Articles (44)
- University of Michigan Journal of Law Reform (35)
- Pepperdine Law Review (30)
-
- Cleveland State Law Review (21)
- UIC Law Review (20)
- Washington and Lee Law Review (16)
- ExpressO (14)
- Faculty Scholarship (12)
- American University Law Review (10)
- Cornell Law Faculty Publications (10)
- Cardozo Law Review (9)
- Publications (8)
- Georgia State University Law Review (7)
- Scholarly Works (7)
- St. Mary's Law Journal (7)
- Villanova Environmental Law Journal (1991 - ) (7)
- Journal of Law and Policy (6)
- Roger Williams University Law Review (6)
- University of Richmond Law Review (6)
- Vanderbilt Law Review (6)
- Brooklyn Journal of Corporate, Financial & Commercial Law (5)
- Chicago-Kent Law Review (5)
- Georgia Law Review (5)
- NYLS Law Review (5)
- Pepperdine Dispute Resolution Law Journal (5)
- Scholarly Articles in Law Reviews & Journals (5)
- Buffalo Law Review (4)
- Cardozo Journal of International and Comparative Law (4)
- Publication Type
Articles 391 - 420 of 720
Full-Text Articles in Legal Remedies
The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson
The Unintended Consequence Of Tort Reform In Michigan: An Argument For Reinstating Retailer Product Liability, Ashley L. Thompson
University of Michigan Journal of Law Reform
Tort reform became an important issue during the 1994 Congressional Campaign as part of the Republican Party's "Contract with America. "Since then, many federal and state laws have attempted to reduce both liability and recovery in tort actions. In 1996, Michigan passed the Tort Reform Act, encompassing many drastic changes to state tort law. One provision of the Act, § 294 7, scaled back liability against non-manufacturing retailers in product liability actions. The Michigan Supreme Court interpreted the exceptions of the law narrowly and the prohibition broadly, essentially barring recovery from retailers. Since 1996, this provision has prevented victims injured …
Let Us Never Blame A Contract Breaker, Richard A. Posner
Let Us Never Blame A Contract Breaker, Richard A. Posner
Michigan Law Review
Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.
Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman
Willfulness Versus Expectation: A Promisor-Based Defense Of Willful Breach Doctrine, Steve Thel, Peter Siegelman
Michigan Law Review
Willful breach doctrine should be a major embarrassment to contract law. If the default remedy for breach is expectation damages designed to put the injured promisee in the position she would have been in if the contract had been performed, then the promisor's behavior-the reason for the breach-looks to be irrelevant in assessing damages. And yet the cases are full of references to "willful" breaches, which seem often to be treated more harshly than ordinary ones based on the promisor's bad/willful conduct. Our explanation is that willful breaches are best understood as those that should be prevented or deterred because …
"One Of The Dirty Secrets Of American Corrections": Retaliation, Surplus Power, And Whistleblowing Inmates, James E. Robertson
"One Of The Dirty Secrets Of American Corrections": Retaliation, Surplus Power, And Whistleblowing Inmates, James E. Robertson
University of Michigan Journal of Law Reform
Retaliation is deeply engrained in the correctional office subculture; it may well be in the normative response when an inmate files a grievance, a statutory precondition for filing a civil rights action. This Article, the first to address comprehensively the sociological and constitutional aspects of retaliation, argues for protecting grievants through safeguards much like those accorded whistleblowers. Part I of the Article provides a socio-legal primer on correctional officer retaliation by addressing the frequency of retaliation, its causes, and its constitutional taxonomy. Part II describes the elements of a prima facie case of unconstitutional retaliation under § 1983. Part III …
The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun
The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun
University of Michigan Journal of Law Reform
Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. They cause dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …
Questioning The Political Question Doctrine: Inconsistent Applications In Reparations And Alien Tort Claims Act Litigation, Shelley Buchanan
Questioning The Political Question Doctrine: Inconsistent Applications In Reparations And Alien Tort Claims Act Litigation, Shelley Buchanan
Cardozo Journal of International and Comparative Law
The note argues that while transnational public law litigants have successfully used U.S. courts to address human rights violations under the Alien Tort Claims Act (ATCA), African American reparations claims for slavery have been systematically dismissed on procedural grounds, particularly under the political question doctrine. This disparity highlights the inconsistent application of the doctrine, with recent ATCA cases narrowing its scope, while African American slave redress cases continue to face strict dismissal. The note advocates for a more consistent application of the political question doctrine across all human rights litigation, including slave redress, to ensure fairness and maintain the U.S. …
Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist
Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist
Law Faculty Publications
The twenty-first century has ushered in demand by some Americans for annoyancetech devices—novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this “revenge by gadget.” Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.
Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa
Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa
UIC Law Review
No abstract provided.
The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson
The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The Legacy Of The 9/11 Fund And The Minnesota I-35w Bridge-Collapse Fund: Creating A Template For Compensating Victims Of Future Mass-Tort Catastrophes, Michael K. Steenson
The Legacy Of The 9/11 Fund And The Minnesota I-35w Bridge-Collapse Fund: Creating A Template For Compensating Victims Of Future Mass-Tort Catastrophes, Michael K. Steenson
Faculty Scholarship
The purpose of this article is to analyze and compare the 9/11 Fund and the Minnesota bridge-collapse compensation scheme for purposes of illustrating the necessary components of any future compensation schemes legislatures consider adopting in cases involving other catastrophes. This article first sets out the primary issues that must be addressed when considering a compensation scheme. It then examines the choices made in the 9/11 Fund and Minnesota’s bridge-collapse compensation scheme. A brief comparison of the two compensation schemes follows to provide the framework for considering the components of future compensation schemes.
In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier
In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier
NYLS Law Review
No abstract provided.
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
Other Publications
As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …
The Appropriations Power And Sovereign Immunity, Paul F. Figley
The Appropriations Power And Sovereign Immunity, Paul F. Figley
Scholarly Articles in Law Reviews & Journals
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …
What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok
What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok
Michigan Law Review
Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation's Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to "reform" tort law throughout the 1980s. There was concern that Americans "egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being." The RAND report argued that the real risk of a torts "explosion" came from the world of mass …
Failed Lawyers And The Sources Of Satire, Charles M. Yablon
Failed Lawyers And The Sources Of Satire, Charles M. Yablon
Articles
Most of those reading this Essay have ample reason to appreciate the benefits of a good legal education. There is pride in becoming a member of an ancient and learned profession, intellectual challenge in wrestling with complex questions of equity, power and social justice, and satisfaction in the sense of superiority you feel towards your loser friends who did not get into a decent law school.
After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok
After Philip Morris V. Williams: What Is Left Of The "Single-Digit" Ratio?, Anthony J. Sebok
Articles
This short essay was written for a symposium on The Future of Punitive Damages held at the Charleston School of Law in 2007. I argue that the ratio rule (that punitive damages that exceed a single digit ratio presumptively violate the Due Process Clause), introduced by the Supreme Court in Campbell, is unlikely to survive. I argue this for three reasons. First, many lower courts have found ways to conceal punitive damages awards that impose, in reality, ratios in the double-digits. Second, the refusal of the Court to reverse the plaintiffs punitive damages award in Williams under the ratio rule …
Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Operationalizing Deterrence Claims Management (In Hopsitals, A Large Retailer, And Jails And Prisons), Margo Schlanger
Articles
The theory that the prospect of liability for damages deters risky behavior has been developed in countless articles and books. The literature is far sparser, however, on how deterrence is operationalized. And prior work slights an equally important effect of damage actions, to incentivize claims management in addition to harm-reduction responses that are cost- rather than liabilityminimizing. This article works in the intersection of these two understudied areas, focusing on claims management steps taken by frequently sued organizations, and opening a window into the black box of deterrence to see how those steps may end up serving harm-reduction purposes as …
Indirect Infringement From A Tort Law Perspective, Charles W. Adams
Indirect Infringement From A Tort Law Perspective, Charles W. Adams
University of Richmond Law Review
No abstract provided.
Requiem For Section 1983, Paul D. Reingold
Requiem For Section 1983, Paul D. Reingold
Articles
Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …
The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell
The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell
Faculty Works
This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. …
Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang
Michigan Law Review
Part I of this Note reviews recent literature on the need for asymmetric discount rates in cost-benefit analysis. It observes that even though scholars disagree on the precise value of the appropriate discount rate, many agree that future costs and benefits must be discounted at different rates. Part II then constructs a simple model, consisting of two activities competing for the same resource, and analyzes the consequences of asymmetric discounting under this model. This Part proposes that, to maximize the joint social utility, the resource should be time divided between the competing activities rather than permanently allocated to one or …
News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert
News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert
ExpressO
With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.
Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast
Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast
ExpressO
The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …
Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman
Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman
ExpressO
For several decades law and economic scholars have employed the tools of price theory in order to evaluate an array of legal questions ranging from criminal sanctions to contract remedies. This vast body of literature implicitly assumed that all payments made through the legal system are fungible. In other words, just as a dollar paid for a tomato is identical to a dollar paid for a cucumber, so are a dollar paid as a pollution tax to the government and a dollar paid as compensation to the party injured by the pollution. In this study we challenge this assumption, and …
Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca
Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca
Law Faculty Scholarship
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, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …
Placing The Commercial And Economic Loss Problem In The Construction Industry Context, 41 J. Marshall L. Rev. 39 (2007), Carl J. Circo
Placing The Commercial And Economic Loss Problem In The Construction Industry Context, 41 J. Marshall L. Rev. 39 (2007), Carl J. Circo
UIC Law Review
No abstract provided.
Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A Blessed Event, Michael T. Murtaugh
Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A Blessed Event, Michael T. Murtaugh
Pace Law Review
No abstract provided.
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Articles
A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages …
Decentralizing The Fight Against Human Trafficking In The United States: The Need For Greater Involvement In Fighting Human Trafficking By State Agencies And Local Non-Governmental Organizations, Shashi Irani Kara
Cardozo Journal of Equal Rights & Social Justice
The note argues that while the federal government has made significant strides in combating human trafficking through legislation like the Trafficking Victims Protection Act (TVPA), these efforts are insufficient due to the decentralized nature of the crime. It emphasizes the necessity for greater involvement from state agencies and local non-governmental organizations (NGOs) to effectively address the diverse and localized manifestations of trafficking.
What Are We Comparing In Comparative Negligence?, Paul H. Edelman
What Are We Comparing In Comparative Negligence?, Paul H. Edelman
Vanderbilt Law School Faculty Publications
In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery. Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, …