Torts Commons^™

Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Scholarly Articles in Law Reviews & Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …

Tort Law Is State Law: Why Courts Should Distinguish State And Federal Law In Negligence-Per-Se Law, Barbara Kritchevsky

American University Law Review

No abstract provided.

The Curious Case Of Directors' And Officers' Liability For Supervision And Management: Exploring The Intersection Of Corporate And Tort Law, Martin Petrin

American University Law Review

No abstract provided.

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

In Defense Of Feres: An Unfairly Maligned Opinion, Paul F. Figley

American University Law Review

The Supreme Court’s 1950 Feres v. United States decision held that when it enacted the Federal Tort Claims Act Congress did not intend to waive sovereign immunity for injuries to members of the military arising out of activity incident to their service. The Court’s decision was influenced by the long history of efforts to enact a general tort claims bill that would free Congress from the burden of processing claims against the government, as well as the case law, statutes, and procedures pertaining to service-members’ injuries prior to enactment of the Federal Tort Claims Act. This Article examines those influences …

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

Scholarly Articles in Law Reviews & Journals

This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

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 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 …

Mercury Rising: The Omnibus Autism Proceeding And What Families Should Know Before Rushing Out Of Vaccine Court, Gordon Shemin

American University Law Review

This Comment sheds light on the “opt-out” provision of the Vaccine Act. It namely discusses the effect of short-form petitions and their impact on subsequent civil action, by examining consequences flowing from the Omnibus Autism Proceeding. In short, it argues that the Vaccine Court erred with its decision to permit short-form petitions by overlooking that procedure’s long-term implications on vaccine plaintiffs. In addition, this Comment lays out a scenario to illustrate the potential pitfalls of a hasty exit from the OAP and offers some guidance to plaintiffs to avoid this outcome. The final part of this Comment offers some ideas …

The Spy Who Sued The King: Scaling The Fortress Of Executive Immunity For Constitutional Torts In Wilson V. Libby, Scott R. Daniel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Guarantors Of Our Genes: Are Egg Donors Liable For Latent Genetic Disease, Suriya E.P. Jayanti

American University Law Review

Assisted reproductive technology ("ART"), including egg donation, is changing the topography of the American family. Heated debates and legislative battles over cloning and stem cell research reveal the complexity of the moral, scientific, and legal implications of emerging alternative reproductive methods. In fact, the field of reproductive medicine is the "Wild West" of the healthcare world where technological development is testing the boundaries of science and ethics. The legal and ethical issues intrinsic to the evolution of the egg donation industry are poised to become central topics of public debate as we, as a culture, reevaluate who and what constitutes …

Minneapolis Bridge Collapse: Motivation To Be Smarter On Infrastructure Or Latest In A Trend?, Mary Bortscheller

Sustainable Development Law & Policy

No abstract provided.

Negligence In The Air: The Duty Of Care In Climate Change Litigation, David Hunter, James Salzman

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Standard Of Care For Residents And Other Medical School Graduates In Training, Joseph H. King

American University Law Review

No abstract provided.

Standard Of Care For Residents And Other Medical School Graduates In Training, Joseph H. King

American University Law Review

No abstract provided.

Symposium: Toward A Feminist Revision Of Torts, Jennifer B. Wriggins

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Lessons From The World Trade Center For Open Space Planning Generally And Boston's Big Data Specifically, Mary Clark

Scholarly Articles in Law Reviews & Journals

This paper looks to several land use planning issues at stake in both the World Trade Center redevelopment and Central Artery/ Tunnel Project, offering some lessons for the future of public open space planning with respect to the inºuence of the press, the centrality of politics, the urgency of addressing public and private claims of land ownership, the need to engage the public, and seizing the opportunity to create new public transportation links.

Low-Income Parents Victimized By Child Protective Services, Candra Bullock

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Offering A Helping Hand: Legal Protections For Battered Immigrant Women: A History Of Legislative Responses , Leslye E. Orloff, Janice V. Kaguyutan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Low-Life-Sleazy-Big-Haired-Trailer-Park Girl V. The President: The Paula Jones Case And The Law Of Sexual Harassment , Barbara Palmer, Judith Baer, Amy Jasperson, Jacqueline Delaat

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Pulliam V. Coastal Emergency Services Of Richmond, Inc.: Reconsidering The Standard Of Review And Constitutionality Of Virginia's Medical Malpractice, Elizabeth Keith

Scholarly Articles in Law Reviews & Journals

Consider the following scenario. A plaintiff is injured in a devastating automobile accident and a jury finds the other driver negligent. As a result of that driver's negligence, the plaintiff is now a quadriplegic. The jury, after careful deliberation and calculation, awards $4.5 million to the plaintiff consisting of both economic damages for past and future medical expenses, as well as non-economic damages for pain and suffering and loss of enjoyment of life. Now consider a similar scenario. The plaintiff is a patient who is injured during a low-risk surgical procedure and a jury finds the surgeon negligent. As a …

Sex, Drugs, & The Restatement (Third) Of Torts, Section 6(C): Why Comment E Is The Answer To The Woman Question , Dolly M. Trompeter

American University Law Review

No abstract provided.

A One Term Tort Reform Tale: Victimizing The Vulnerable, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

During its spring 1997 term, Congress passed the Volunteer Protection Act and considered but did not pass the Biomaterials Access Assurance Act of 1997. The Volunteer Protection Act provides a wide range of tort immunities to volunteers working for charitable organizations. The Biomaterials Access Assurance Act would have provided tort immunity to biomaterials producers. In this Article, the author examines the origins and possible implications of both these tort reform proposals from a class-based perspective and within the broader context of the ongoing tort reform debate. The author concludes that both of these proposals ultimately would harm individuals in vulnerable …

Tort Reform Policy More Than State Law Dominates Section 2 Of The Third Restatement, Andrew Popper

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Rape In Wartime: Redress In United States Courts Under The Alien Tort Claims Act, Susana Sácouto

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Burdens Of Qualified Immunity: Summary Judgment And The Role Of Facts In Constitutional Tort Law , Alan K. Chen

American University Law Review

No abstract provided.

Recalibrating The Scales Of Justice Through National Punitive Damage Reform, Kimberly A. Pace

American University Law Review

No abstract provided.

Personal Responsibility And The Law Of Torts , Douglas H. Cook

American University Law Review

No abstract provided.