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Articles 1 - 22 of 22
Full-Text Articles in Legal Remedies
Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin
Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin
University of Michigan Journal of Law Reform
Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.
Liability Of Suppliers Of Natural Raw Materials And The Restatement (Third) Of Torts: Products Liability- A First Step Toward Sound Public Policy, M. Stuart Madden
Liability Of Suppliers Of Natural Raw Materials And The Restatement (Third) Of Torts: Products Liability- A First Step Toward Sound Public Policy, M. Stuart Madden
University of Michigan Journal of Law Reform
From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that …
Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz
Regulatory Standards And Products Liability: Striking The Right Balance Between The Two, Teresa Moran Schwartz
University of Michigan Journal of Law Reform
Common law courts have a long tradition of borrowing legislative and regulatory standards to define standards of care under the tort system. Treating such standards as setting minimum levels of care and safety under tort law, the courts uniformly have ruled that violations of standards constitute negligence per se, while compliance is merely evidence of negligence. Although critics of the tort system have urged legislatures and courts to adopt rules giving greater weight to regulatory compliance in products liability cases, the drafters of the Restatement (Third) of Torts: Products Liability have declined to do so. They have adopted instead an …
Design Defects Under The Proposed Section 2(B) Of The Restatement (Third) Of Torts: Products Liability- A Judge's View, William A. Dreier
Design Defects Under The Proposed Section 2(B) Of The Restatement (Third) Of Torts: Products Liability- A Judge's View, William A. Dreier
University of Michigan Journal of Law Reform
The proposed section 2(b) of the Restatement (Third) of Torts: Products Liability has caused a great deal of controversy, and many are concerned that this section represents a radical change in the law. This Article explains that section 2(b) in fact provides a pragmatic, workable tool for judges and attorneys to explain and prove a manufacturer's liability for a defective product. It sheds much of the baggage of the Restatement (Second) of Torts section 402A and its commentaries, yet preserves the essence of the theory behind section 402A. The criticisms of the new language are adequately met in the comments, …
Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall
Constructing A Roof Before The Foundation Is Prepared: The Restatement (Third) Of Torts: Products Liability, Section 2(B) Design Defect, Frank J. Vandall
University of Michigan Journal of Law Reform
The Restatement (Third) of Torts: Products Liability section 2(b) is a wish list from manufacturing America. It returns products liability law to something more restrictive than negligence. What is new from the Reporters is that their proposal is written on a clean sheet of paper. Messy and awkward concepts such as precedent, policy, and case accuracy have been brushed aside for the purpose of tort reform. There has been almost no attempt to evaluate strict liability precedent or the policies underlying previous cases and the Restatement (Second) section 402A. Section 2b (the roof) has been drafted with little consideration of …
Ioltas Unmasked: Legal Aid Programs' Funding Results In Taking Of Clients' Property, Kevin H. Douglas
Ioltas Unmasked: Legal Aid Programs' Funding Results In Taking Of Clients' Property, Kevin H. Douglas
Vanderbilt Law Review
States have implemented Interest on Lawyers' Trust Account programs ('IOLTAs")' to generate revenue for legal aid. IOLTAs raise money through the creation of an economy of scale by directing attorneys to place clients' trust funds that could not profitably draw interest in individual checking accounts into an unsegregated interest- bearing bank account ("IOLTA account"). By significantly reducing the expense that results from opening and maintaining separate accounts for individual clients, the IOLTA account profitably draws interest when individual client accounts could not. The interest generated from the IOLTA account is used to fund legal aid programs according to the specifications …
The Predictability Of Punitive Damages, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, Martin T. Wells
The Predictability Of Punitive Damages, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, Martin T. Wells
Cornell Law Faculty Publications
Using one year of jury trial outcomes from 45 of the nation's most populous counties, this article shows a strong and statistically significant correlation between compensatory and punitive damages. These findings are replicated in 25 years of punitive damages awards from Cook County, Illinois, and California. In addition, we find no evidence that punitive damages awards are more likely when individuals sue businesses than when individuals sue individuals. With respect to award frequency, juries rarely award punitive damages and appear to be especially reluctant to do so in the areas of law that have captured the most attention, products liability …
Property Rules As Remedies, Emily Sherwin
Property Rules As Remedies, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab
The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab
Cornell Law Faculty Publications
It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability. Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article—which, thanks to its subtitle, we shall call The Cathedral—has had a remarkable influence on our own thinking, as we tried to show in a recent paper.
This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom …
The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher
The Unwelcome Judicial Obligation To Respect Politics In Racial Gerrymandering Remedies, Jeffrey L. Fisher
Michigan Law Review
Like it or not, the attack on "bizarrely" shaped majority-minority electoral districts is now firmly underway. Nearly four years have passed since the Supreme Court first announced in Shaw v. Reno that a state's redistricting plan that is "so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting" may violate the Equal Protection Clause. Such a district, the Court held, reinforces racial stereotypes, carries us further from the goal of a political system in which race no longer matters, and "threatens to undermine our system of …
An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers
An Implied Cause Of Action Under The Real Estate Settlement Procedures Act, Christopher L. Sagers
Michigan Law Review
John and Janet lived for most of their early years together in a townhouse in Manhattan. It was a rental, a two-story walk-up on the Upper West Side with barely enough room for the two of them, and it ate up most of their income so that they were barely able to save anything. "Wait a minute," John said one day, "we're paying almost as much for this dump as we'd pay for a mortgage on a nice house!" So the two of them looked over their finances. Not much there. A few thousand and a 401(k) at Janet's work. …
The Underrepresentation Of Minorities In The Legal Profession: A Critical Race Theorist's Perspective, Alex M. Johnson Jr.
The Underrepresentation Of Minorities In The Legal Profession: A Critical Race Theorist's Perspective, Alex M. Johnson Jr.
Michigan Law Review
Over the last four years, I have taught a course in Critical Race Theory at the University of Virginia School of Law three times. Although each course is different, given the interplay between the teacher and the students and the integration of new developments into the course, there has been one constant subject that the students and I address: Of what import is the development of Critical Race Theory for the legal profession and larger society? Can Critical Race Theory have a positive or any effect for those outside legal academia? This article represents an attempt to explore that question …
Oppression Of Minority Shareholders In Close Corporations: The Dissolution And Buy Out Remedies, Alexis Wochenmarkt
Oppression Of Minority Shareholders In Close Corporations: The Dissolution And Buy Out Remedies, Alexis Wochenmarkt
LLM Theses and Essays
To understand the potentially dramatic consequences of oppression in a close corporation it is in the first instance necessary, to outline the specific characteristics of these corporations. This thesis concentrates on the peculiarities of close corporations. Most states enacted "oppression" as a generic ground for remedial action. This study evaluates the different standards emphasizing reasonable expectations. Reasonable expectations if properly limited appears to be an efficient tool to measure oppression. In other jurisdictions, mainly where oppression is not available as a ground for dissolution, courts encountered the needs of close corporations by enhancing the owed fiduciary duties. Thus, in some …
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin
Vanderbilt Law School Faculty Publications
Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …
In Re The Exxon Valdez: The Danger Of Deception In A Novel Mary Carter Agreement, Amy Edwards Wood
In Re The Exxon Valdez: The Danger Of Deception In A Novel Mary Carter Agreement, Amy Edwards Wood
Seattle University Law Review
This Note addresses the legality and ethics of the secret agreement between Exxon and the Seattle Seven by analogy to a similar type of collusive agreement called a "Mary Carter" agreement. Part I of this Note looks at the terms of the Exxon/Seattle Seven agreements. Part II examines Judge Holland's controversial decision with respect to the Exxon/Seattle Seven agreements. Part III describes the nature of a Mary Carter agreement and the factors used to determine whether such an agreement exists. Then Part IV argues that, like Mary Carter agreements, the Exxon/Seattle Seven agreements undercut the jury system, prolong litigation, contravene …
Congress's Amendment To Section 104 Of The Tax Code Will Not Clarify The Tax Treatment Of Damages And Will Lead To Arbitrary Distinctions, Sharon E. Stedman
Congress's Amendment To Section 104 Of The Tax Code Will Not Clarify The Tax Treatment Of Damages And Will Lead To Arbitrary Distinctions, Sharon E. Stedman
Seattle University Law Review
This Note examines the recent amendment of I.R.C. § 104 and argues that the amendment will not clarify the tax treatment of damages but will instead lead to inequitable results and arbitrary distinctions. Part I explores the policy justifications for the exclusion of damage awards from gross income and provides a brief overview of section 104. Next, in Part II, the article reflects upon the tax treatment of damages prior to the recent amendment. In doing so, Part II focuses on the relevant case law and revenue rulings. Turning toward the tax treatment of damages under the new amendment, Part …
What Kulch Accomplished; What Kulch Left Out, Sandra J. Kerber
What Kulch Accomplished; What Kulch Left Out, Sandra J. Kerber
Law Faculty Articles and Essays
An analysis of the rights of terminated whistleblowers in Ohio, as mandated by section 4113.52 of the Ohio Revised Code and interpreted by Kulch v. Structural Fibers, Inc., 677 N.E.2d 308 (Ohio 1997).
Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud
Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud
Articles
When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Going To Trial: A Rare Throw Of The Die, Samuel R. Gross, Kent D. Syverud
Articles
If it is true, as we often hear, that we are one of the most litigious societies on earth, it is because of our propensity to sue, not our affinity for trials. Of the hundreds of thousands of civil lawsuits that are filed each year in America, the great majority are settled; of those that are not settled, most are ultimately dismissed by the plaintiffs or by the courts; only a few percent are tried to a jury or a judge. This is no accident. We prefer settlements and have designed a system of civil justice that embodies and expresses …
Dealing With Evidentiary Deficiency, Richard D. Friedman
Dealing With Evidentiary Deficiency, Richard D. Friedman
Articles
Lack of information distorts litigation. Claims or defenses that a party might prove easily, or that might even be undisputed, in a world of perfect information can be difficult or impossible to prove in the real world of imperfect information. Some information deficiencies are inevitable, at least in the sense that we could not eliminate them without incurring undue social costs. In some cases, however, a person's conduct may have caused the deficiency. More generally, the person may have had available a reasonable alternative course of conduct that would have eliminated, or at least mitigated, the deficiency. Ariel Porat and …
Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman
Emphasizing The Constitutional In Constitutional Torts (Symposium On Section 1983), Christina B. Whitman
Articles
It has been surprisingly difficult to extricate constitutional litigation from torts. In this Article I would like to resist once more' the idea that tort doctrines and tort categories provide a useful model for constitutional decision-making. When it comes to deciding the merits of a constitutional claim, torts is a distraction. That is the case whether torts serves as a positive model for the constitutional cause of action or as an alternative to be shunned. As part of this argument, I also question the claim2 that Monroe v. Pape,3 the 1961 case that opened the door for damages relief under …
Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Hutchinson
Out Yet Unseen: A Racial Critique Of Gay And Lesbian Legal Theory And Political Discourse, Darren Hutchinson
Darren L Hutchinson