Torts Commons^™

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

George Mason University School of Law Working Papers Series

This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert”, forthcoming the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects. Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears …

The Comparative Law And Economics Of Pure Economic Loss, Francesco Parisi, Vernon Valentine Palmer, Mauro Bussani

George Mason University School of Law Working Papers Series

Law and economics shows that a key factor in determining the optimal economic loss rule is found in the relationship between pure economic loss and social loss. Economic loss should be compensable in torts only to the extent that it corresponds to a socially relevant loss. In this paper we undertake a comparative evaluation of the economic loss rule to verify whether modern legal systems, although not formally adopting the economic criterion, define the exclusionary rule in light of efficiency considerations. The comparative analysis reveals that the substantive applications of the economic loss rule in European jurisdictions are consistent with …

Civil Rights In Ordinary Tort Cases: Race, Gender, And The Calculation Of Economic Loss, Martha Chamallas

The Ohio State University Moritz College of Law Working Paper Series

This article explores race and sex bias in the computation of damages for loss of future earning capacity, an important component of economic loss in personal injury cases. It analyzes recent cases in the United States and in Canada which reject the use of race and sex-based tables to determine awards for female and minority plaintiffs and explains the method used by the special master in the September 11th Compensation Fund. Chamallas explores objections to reform -- from both the “right” and the “left” –- and makes the case for connecting civil rights principles to civil litigation.

The Cultural Evolution Of Tort Law, Stuart Madden

ExpressO

THE CULTURAL EVOLUTION OF TORT LAW* Abstract The Institutes of Justinian and other Greco-Roman recitations of tort-type delicts and remedies are recognized as root stock of modern western tort law, common law or civil code-based alike. Long before these sources, however, both ancient and primitive cultures adopted norms and customs which defined permissible individual and group conduct, and which provided for remedies ranging from money damages to banishment. Among the surveyed examples of ancient cultural responses to tort-type delicts were numerous instances in which both the civil wrong identified and the remedy provided for can be harmonized readily with modern …

Experiments On The Effects Of Fee Shifting And Discovery On The Efficient Settlement Of Tort Claims, Laura Inglis, Kevin Mccabe, Steve Rassenti, Daniel R. Simmons, Erik Tallrot

ExpressO

In this paper, we apply the methods of experimental economics pioneered by 2002 Nobel Prize winner Vernon Smith to the study of the effects of several proposed tort reform options. Specifically, we study the effects of fee shifting and discovery on the efficient use of the courts. Because it is difficult, if not impossible, to measure efficiency in the real world, we believe that controlled experiments offer valuable contributions to the debate on tort reform.

The experiments presented in this paper point to the following main conclusions: First, a symmetric cost-shifting rule, as embodied in Section 998, California Code of …

Soft Regulators, Tough Judges, Gerrit De Geest, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Judges have a tendency to be more demanding than regulators. In the United States, a majority of the courts has adopted the rule that the unexcused violation of a statutory standard is negligence per se. However, the converse does not hold: compliance with regulation does not relieve the injurer of tort liability. In most European legal systems, the outcome is similar. We use a framework in which, on the one hand, the effects of tort law are undermined by insolvency and evidence problems and, on the other hand, regulation is expensive in terms of monitoring and information gathering. We show …

The Risks Of And Reactions To Underdeterrence In Torts, Thomas C. Galligan

ExpressO

The Risks of and Reactions to Underdeterrence in Torts posits that as our nation considers tort reform at both the state and federal levels, it should not be blinded to the fact that, while tort law may, in some cases, overdeter, it also may underdeter, especially in mass tort cases. The piece contends that the traditional (one-on-one) model of tort law may both cause and exacerbate the underdeterrence problems and, consequently, alternative models (class action, augmented awards, and public tort suits) must be considered and analyzed. The piece proceeds to compare and contrast the strengths and weaknesses of each of …

Organizational Misconduct: Beyond The Principal-Agent Model, Kimberly D. Krawiec

ExpressO

This article demonstrates that, at least since the adoption of the Organizational Sentencing Guidelines in 1991, the United States legal regime has been moving away from a system of strict vicarious liability toward a system of duty-based organizational liability. Under this system, organizational liability for agent misconduct is dependant on whether or not the organization has exercised due care to avoid the harm in question, rather than under traditional agency principles of respondeat superior. Courts and agencies typically evaluate the level of care exercised by the organization by inquiring whether the organization had in place internal compliance structures ostensibly designed …

Disappearing Defendants V. Judgment Proof Injurers: Upgrading The Theory Of Tort Law Failures, Giuseppe Dari-Mattiacci, Barbara Mangan

George Mason University School of Law Working Papers Series

Do injurers’ insolvency and victims’ reluctance to sue affect accident prevention in the same way? Are these circumstances less of a problem under the negligence rule than under strict liability? We argue, contrary to the literature, that the answer is, in most cases, negative and make three main points. First, the judgment proof problem and the disappearing defendant problem are shown to have different effects on injurers’ behavior and hence yield dissimilar levels of social welfare. Second, when these two problems occur simultaneously they may have offsetting effects. Third, the negligence rule is superior to strict liability only under some …

Soft Negligence And Cause In Fact: A Comment On Ganuza And Gomez, Giuseppe Dari-Mattiacci

George Mason University School of Law Working Papers Series

Lowering the standard of negligence below the first-best socially optimal level has been shown by Ganuza and Gomez (2004) to increase the level of care taken by judgment proof injurers. In this paper, I consider a more complex model of negligence in which cause in fact is taken into account, and I show that this conclusion holds when the injurer’s care reduces the magnitude of the accidental harm but not when the injurer’s care reduces the probability of the accident. Thus, such soft negligence strategies aimed at tackling the adverse effects of judgment proofness need to be conditioned to the …

Causation And Attenuation In The Slavery Reparations Debate, Kaimipono D. Wenger

ExpressO

Recent discussions of reparations have noted the difficulty reparations advocates have in showing causation. Criticisms of reparations have focused on the attenuated nature of the harm, suggesting that modern claimants are not connected to slaves, that modern payers are not connected to slave owners, and that modern disadvantages cannot be connected to slavery.

This Article examines attenuation concerns and finds that they come in three related but distinct varieties: Victim attenuation, wrongdoer attenuation, and act attenuation. These three components, defined in this Article, show themselves in a number of interrelated legal and moral arguments. They have important strategic consequences, and …

Solving The Punitive Damage Mismatch, Ari Behar

ExpressO

There are several reasons underlying the system of punitive damages. Application of these reasons to cases yields differing results. The reasons fall into two categories: those that support awarding additional damages to the plaintiff and those that support extracting more damages from the defendant. When the reasons in favor of extraction exceed those in favor of award, the award should be split between the plaintiff and a fund. This fund should be used to supplement awards when the reasons favoring award exceed those favoring extraction.

Institutional Reckless Disregard For Truth In Public Defamation Actions Against The Press, Randall P. Bezanson

ExpressO

Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved "with convincing clarity" has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously …

Mandatory Recall Authority: A Sensible And Minimalist Approach To Improving Food Safety, Michael T. Roberts

ExpressO

No abstract provided.

The Poor State Of Health Care Quality In The U.S.: Is Malpractice Liability Part Of The Problem Or Part Of The Solution?, Charles Silver

ExpressO

The belief that malpractice lawsuits impede efforts to improve health care quality by encouraging providers to hide mistakes is the conventional wisdom among patient safety advocates and scholars. It also provides the normative basis for efforts currently proceeding at the state and federal levels to curtail medical malpractice exposure. Groups pressing for tort reform, including the American Medical Association, contend that when doctors and other providers are insulated from liability, patients will be better protected from harm.

This article canvasses the evidence bearing on the connection between malpractice exposure and health care quality. Some of this evidence, such as the …

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

Judicial Recognition Of The Interests Of Animals - A New Tort, David Favre

ExpressO

This article seeks to explore a simple but profound question. How should our legal system deal with the claims of animals for protection against harms inflicted by humans? Rather than a comparative rights analysis as used by some writers, this article will use the non-comparative approach based upon an interest analysis. The short answer is that our legal system can and should do what it always has done, balance the interests of competing individuals in a public policy context, always seeking to strike an ethically appropriate balance. It will be shown that the legislative branch of our government presently promotes …

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

Wiretapping's Fruits, The First Amendment, And The Paradigms Of Privacy, Bernard W. Bell

Rutgers Law School (Newark) Faculty Papers

No abstract provided.

Economic Analysis In A Unified Conception Of Tort Law, Mark Geistfeld

ExpressO

The controversy regarding the appropriate purpose of tort law continues to rage. Some advocate that tort rules should minimize accident costs as an instrument for maximizing social welfare and wealth. Others argue that as a matter of corrective justice, tort rules should fairly protect the individual right to physical security. These two conceptions of tort law are fundamentally incompatible and mutually exclusive. It is a separate question whether the requirements of welfare economics are compatible with those of fairness. This article establishes the possibility of a unified conception of tort liability, one capable of fully accounting for the central tenets …

Developing Internationally Uniform Liability Principles For Harms From Genetically Modified Organisms , Ryan C. Hansen

ExpressO

This paper analyzes the current legal principles regarding liabillity for harms from genetically modified organisms (GMOs) in the U.S. and E.U., as well as the various international policies and mechanisms affecting GMOs

Mass Toxic Tort Litigation And Class Action Rule Reform In The United States, Jason L. Betts

ExpressO

The paper advances the proposition that mass toxic tort litigation has been the predominant driver of class action rule reform in the Unites States. Through three distinct phases of proposals to reform Rule 23 of the Federal Rules of Civil Procedure, the judicial and academic attitude to the certification of mass toxic torts has influenced the reform debate in radically different ways – initially by providing the catalyst for efforts to reform Rule 23; then as a dampener against significant reforms to Rule 23 in the wake of mass toxic tort “settlement-only” classes; and ultimately as an explanation for the …

A Family Affair: Sharing Information About Genetic Diseases, Lyria K. Bennett Moses

ExpressO

Genetic test results provide information relevant to the future health of the person tested as well as parents, siblings, children and more distant relatives. This Article examines the legal consequences that might follow a decision to share or withhold genetic information. It argues that the obstacles to liability might not be justified in situations where either disclosure of genetic information or silence will cause significant harm.

Real Options In Law: (Possibly, Frivolous) Litigation And Other Applications, Peter H. Huang

ExpressO

This Article advances the thesis that real options are not only ubiquitous in law, but also provide novel insights about legal decision making, doctrines and rules. An introduction provides a brief a primer about financial options, real options, and real options in law. Part I of this Article develops implications of the fact that every lawsuit contains a sequence of real options for the plaintiff to unilaterally abandon that lawsuit. Part II of this Article appraises the limitations of game-theoretic analysis of the abandonment options embedded in litigation and some responses to such limitations. Part III of this Article illustrates …