Litigation Commons^™

Private Law Statutory Interpretation, Shyamkrishna Balganesh

Faculty Scholarship

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is …

The Effects Of Comparable‐Case Guidance On Awards For Pain And Suffering And Punitive Damages: Evidence From A Randomized Controlled Trial, Hillel J. Bavli, Reagan Mozer

Faculty Journal Articles and Book Chapters

Damage awards for pain and suffering and punitive damages are notoriously unpredictable. Courts provide minimal, if any, guidance to jurors determining these awards, and apply similarly minimal standards in reviewing them. Lawmakers have enacted crude measures, such as damage caps, aimed at curbing award unpredictability, while ignoring less drastic alternatives that involve guiding jurors with information regarding damage awards in comparable cases (“comparable‐case guidance” or “prior‐award information”). The primary objections to the latter approach are based on the argument that, because prior‐award information uses information regarding awards in distinct cases, it introduces the possibility of biasing the award, or distorting …

Res Ipsa Loquitur: Reducing Confusion Of Creating Bias?, Jeffrey H. Kahn, John E. Lopatka

Kentucky Law Journal

No abstract provided.

Catholic Dioceses In Bankruptcy, Marie T. Reilly

Catholic Dioceses in Bankruptcy

The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based …

Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), Scott Skinner-Thompson

Research Data

This document, Privacy's Double Standards: Public Disclosure Tort Case Chart (2006-2016), 93 Wash. L. Rev. Online 2051 (2018), https://www.law.uw.edu/wlr/online-edition/scott-skinner-thompson, was published as an electronic supplement to the empirical study, Scott Skinner-Thompson, Privacy’s Double Standards, 93 Wash. L. Rev. 2051 (2018), available at https://scholar.law.colorado.edu/articles/1218/.

The Case For An International Court Of Civil Justice, Maya Steinitz

Books

When multinational corporations cause mass harms to lives, livelihoods, and the environment in developing countries, it is nearly impossible for victims to find a court that can and will issue an enforceable judgment. In this work, Professor Maya Steinitz presents a detailed rationale for the creation of an International Court of Civil Justice (ICCJ) to hear such transnational mass tort cases. The world's legal systems were not designed to solve these kinds of complex transnational disputes, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice in country after country, court after court. …

The Unconstitutionality Of The Protecting Access To Care Act Of 2017’S Cap On Noneconomic Damages In Medical Malpractice Cases, Kaeleigh P. Christie

Journal of Legislation

No abstract provided.

Evaluating New York's Notice Of Claim Requirements: Why Naming Individual Municipal Employees Is Not Essential, Daniel Randazzo

St. John's Law Review

(Excerpt)

This Note argues that the approach adopted by the Fourth Department in Goodwin—that General Municipal Law § 50-e does not require the naming of individual municipal employees— is the correct approach in terms of the text of the statute and the purpose behind the statute, as well as policy and practical implications. This Note is comprised of four parts. Part I illustrates the importance of the notice of claim requirement and introduces the text of New York General Municipal Law § 50- e(2). Part II provides a synopsis of the case law on both sides of this issue, …

The Demise Of Drug Design Litigation Death By Federal Preemption, Aaron Twerski

Faculty Scholarship

No abstract provided.

Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …

A Mountain State Transformation: West Virginia's Move Into The Mainstream, Cary Silverman, Richard R. Heath Jr.

West Virginia Law Review

No abstract provided.

A Content Analysis Of Section 1983 Litigation Against Reserve Police Officers, Michael Ryan Broadus

Master's Theses

Police studies have well developed a demonstrative framework for detailing risks which generate financially-detrimental civil litigation – particularly regarding 42 U.S.C. §1983. Conversely, though, police studies have given little attention to the often-used but differentially-trained reserve police officer. Primarily replicating the methodologies of Kappeler, Kappeler, and del Carmen (1993) and Ross (2000), this descriptive study sought to fill this void via a manifest content approach to purposively select a sample of Section 1983 cases decided by U.S. District Courts over a 16-year period (2001-2016) to determine: (1) if significant liability was generated by reserve officers, (2) the main basis for …

Allocation Rules And The Stability Of Mass Tort Class Actions, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

This paper studies the effects of allocation rules on the stability of mass tort class actions. I analyze a two-stage model in which a defendant faces multiple plaintiffs with heterogeneous damage claims. In stage 1, the plaintiffs play a noncooperative coalition formation game. In stage 2, the class action and any individual actions by opt-out plaintiffs are litigated or settled. I examine how the method for allocating the class recovery interacts with other factors---the shape of the damage claims distribution, the scale benefits of the class action, and the plaintiffs' probability of prevailing at trial and bargaining power in settlement …

A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery

Georgia State University Law Review

In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took to …

United States V. Osman: Including Future Therapy Costs In Mandatory Restitution Awards Is The Growing Trend Among Circuits, But Is It Wise?, Mary Theresa Mahfoud

Mercer Law Review

Mandatory restitution awards for child victims of sex crimes and child pornography now include future therapy costs. This trend, while theoretically increasing the amount of restitution awarded to the victim, can have unintended harmful consequences. The United States Court of Appeals for the Eleventh Circuit in United States v. Osman, as a matter of first impression, upheld a restitution order under the Mandatory Restitution for Sexual Exploitation of Children Act (Mandatory Restitution Act) to include future therapy expenses.

William Edward Osman pleaded guilty in the United States District Court for the Middle District of Florida to the possession, production, …

Don’T Let The Bed Bugs Bill: Landlord Liability For Bed Bug Infestations In Georgia, Megan M. Harrison

Georgia State University Law Review

Although the historical relationship between bed bugs and humans dates back to ancient Egypt, the common bed bug, or Cimex lectularius, vanished from the beds of Americans around World War II. In the late 1990s, however, our bloodsucking bedfellows returned. Bed bug infestations are a growing public health issue. Bed bugs are now found in all fifty states, with populations in five states reaching epidemic levels. Both the Environmental Protection Agency (EPA) and the Center for Disease Control and Prevention(CDC) consider bed bugs a “pest of significant public health importance."

Despite their name, bed bugs are not limited to …

Individual Accountability For Corporate Crime, Gregory Gilchrist

Georgia State University Law Review

Corporate crime is too often addressed by fining the corporation, leaving the real people who committed the crime facing no consequence at all. This failure to hold individuals accountable in cases of corporate malfeasance generates an accountability gap that undermines deterrence and introduces expressive costs. Facing heightened criticism of this trend, then-Deputy Attorney General Sally Yates issued a policy designed to generate prosecutions of real people in cases of corporate wrongdoing. The policy reflects a strong and continuing demand for more prosecutions of individuals in the corporate context.

This Article contends that the effort to introduce accountability by increasing prosecutions …

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.

Opioid Addiction Litigation And The Wrongful Conduct Rule, Samuel Fresher

University of Colorado Law Review

The United States is facing an opioid addiction crisis. Can our civil courts help? This Comment explores obstacles to recovery for plaintiffs in tort suits against health care institutions and practitioners in opioid addiction litigation. It argues that defenses based on plaintiffs' wrongful conduct, which deny plaintiffs access to civil remedies due to their immoral or illegal conduct, should be eliminated or avoided in suits arising out of addiction. This Comment concludes that comparative fault principles adequately protect the interests of plaintiffs and defendants in drug addiction suits and advance important public policy goals. Finally, this Comment suggests that irrespective …

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel

All Faculty Publications

Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

The Litigators: Perceptions Of Predictability, Definitions Of A Good Outcome, And An Alternative To Mass Tort Trials, Lisa K. Dicker, Shane K. Hebel

Faculty Publications

(Excerpt)

A pervasive theme in our understanding of civil legal disputes is the “big case”; that is, the generic mass tort that pits sympathetic clients against shadowy, villainous corporations. In John Grisham’s stories about these cases, a David-and-Goliath legal battle ensues, the parameters of the law shift, the attorneys’ ethics stretch, and the author uses characters to reveal both sides’ deep secrets unwillingly—and sometimes unwittingly. Ultimately, the case leads to a “win” for one side or the other—either a huge payday for the clients and a large percentage-based fee for the lawyers who stumbled across it, or a corporation that …

Mass Torts—Maturation Of Law And Practice, Paul D. Rheingold

Pace Law Review

Mass tort litigation has been with us for about fifty years. This is dating the start from the MER/29 litigation in 1964. This field of law and practice has grown year after year, and it shows no sign of abating. At the same time, it can be said that this area of law and procedure has reached a mature stage; the practice is fairly standardized and earlier experiments have either become the model or have been abandoned.

The term “mass tort litigation” (MTL), as used in this article, confines itself to product liability personal injury cases involving similar injuries from …

Newsroom: Logan Quoted In Bloomberg News On Opiod Litigation 08-16-2017, Jef Feeley, Jared S. Hopkins

Life of the Law School (1993- )

No abstract provided.

Holding Supporters Of Terrorism Accountable: The Exercise Of General Jurisdiction Over The Pa And Plo In A Post-Daimler Framework, Mark D. Christopher

Georgia Journal of International & Comparative Law

No abstract provided.

Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom

Michigan Law Review

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain non meritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously, though, …

Institutional Failure, Campus Sexual Assault And Danger In The Dorms: Regulatory Limits And The Promise Of Tort Law, Andrea A. Curcio

Faculty Publications By Year

Data demonstrates the majority of on-campus sexual assaults occur in dorm rooms. At many colleges, this fact receives little, if any, attention. This article discusses how schools' failure to raise awareness about, and develop risk reduction programs for, dorm-based assaults is another example of long-standing institutional failures when it comes to addressing campus sexual assault. Ignoring where most on-campus assaults occur provides students with a false sense of security in their dorms, limits the efficacy of bystander intervention programs, and results in scant attention and research directed at the efficacy of dorm-based awareness and risk-reduction efforts. This article suggests that …

Vicarious Windfalls, Justin Sevier

Scholarly Publications

The vicarious liability doctrine, which holds third parties responsible for the legal obligations of their duly authorized agents, was designed in part to ensure that tort victims are not undercompensated by insolvent agent wrongdoers. But many legal scholars are highly critical of the doctrine and suggest that fact finders’ systematic biases-particularly with respect to corporate third parties-cause unworthy tort plaintiffs to be overcompensated at the expense of innocent, deep-pocket corporate defendants. These scholars have offered little empirical evidence for these claims and, in fact, behavioral research suggests that their predictions are incorrect.

This Article introduces the concept of the vicarious …

A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, Rebecca M. Murphy, Samantha M. Clarke

Roger Williams University Law Review

No abstract provided.