Torts Commons^™

Civil Recourse Theory's Reductionism, Guido Calabresi

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Two Roads Diverge For Civil Recourse Theory, Christopher J. Robinette

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

Lost Life And Life Projects, Sean Hannon Williams

Indiana Law Journal

This Article provides the first analysis of wrongful death damages from the perspective of individual justice accounts of tort law. There is a widespread belief that wrongful death damages are incoherent. Currently, tort law responds only to the harms of the decedent’s living relatives. Drawing on deterrence rationales, Cass Sunstein, Eric Posner, and others have recommended altering these damage awards so that they respond to the harms of the decedent herself by providing “lost life” damages. This Article offers a different and powerful new foundation for lost life damages rooted in corrective justice and its main competitor, civil recourse. At …

Preparatory Negligence, Robert H. Heidt

Articles by Maurer Faculty

This Essay discusses the appropriate significance in tort law of a negligent attempt to perform an injurious activity when the evidence is insufficient to show the actual performance of the activity was negligent. The author calls such a negligent attempt uncoupled with sufficient evidence of negligent performance "preparatory negligence." An example would be driving a car when one is so inebriated that the decision to drive is negligent but those injured in a subsequent accident are unable to show the inebriated driver's actual driving was negligent. The author argues that preparatory negligence alone should never warrant tort liability. Rather, those …

Section 1983 Wrongful Death And Survival Actions In The Seventh Circuit: An Indiana Litigant's Guide To Claims After Russ V. Watts, Michelle R. Gough

Indiana Law Journal

The availability of survival and wrongful death damages in 42 U.S.C. § 1983 cases is an area that involves both changing precedent and unaddressed issues within the Seventh Circuit. In both of the aforementioned types of claims, the cases will necessarily involve the tangled application of both state and federal law, and the Seventh Circuit and other federal courts of appeals have struggled to provide a clear, coherent approach to these issues. Indeed, there is strong disagreement among the circuits. Dean Steven H. Steinglass offered the most comprehensive discussion of the nature of both types of claims under § 1983 …

The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

Damned For Their Judgment: The Tort Liability Of Standard Development Organizations, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

Restraining False Light: Constitutional And Common Law Limits On A "Troublesome Tort", James B. Lake

Federal Communications Law Journal

The defamation tort is the common law's established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation …

When Plaintiffs Are Premium Planners For Their Injuries: A Fresh Look At The Fireman's Rule, Robert H. Heidt

Indiana Law Journal

No abstract provided.

Lies, Damned Lies, And Statistics? Structured Settlements, Factoring, And The Federal Government, Laura J. Koenig

Indiana Law Journal

No abstract provided.

Lashing Reason To The Mast: Understanding Judicial Constraints On Emotion In Personal Injury Litigation, Jody L. Madeira

Articles by Maurer Faculty

Arguing from the premise that personal injury plaintiffs and injury evidence do not taint proceedings by encouraging jurors to adjudicate based on emotion rather than evidence, this article reviews and challenges judicial attempts to constrain jurors' emotive responses to an injured plaintiff in three areas of personal injury litigation: voir dire, admissibility of evidence, and restrictions on damages arguments and assessment. The judicial abhorrence of sympathy as a ground for substantive decision making during some phases of the trial clashes with judicial tolerance of the emotion during others, giving rise to a pattern of sympathy in, sympathy out where the …

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a …

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise …

The Kindynamic Theory Of Tort, Christopher P. Guzelian

Indiana Law Journal

Commentators complain of two major deficiencies in modern tort law: (1) that liability concepts such as "negligence" or "duty " are so vacuously defined as to permit inadvertent subjectivity and error to hinder proper case adjudication, and (2) that tort is too slow in recognizing newly discovered risks and properly compensating nascent classes of injury. We accordingly report on the Kindynamic Theory, an emerging philosophy that overcomes these twin deficiencies and sharpens understanding of poorly articulated tort intuitions

Kindynamics contends that causation is the cornerstone of tort, and that all risks are, at core, causal propositions. Contrary to its many …

Tort Liability After The Dust Settles: An Economic Analysis Of The Airline Defendants' Duty To Ground Victims In The September 11 Litigation, David Y. Stevens

Indiana Law Journal

No abstract provided.

Talk Show Torts Turn Deaf Ear To Plaintiffs, Joseph A. Tomain

Articles by Maurer Faculty

No abstract provided.

The Dangerous Allure Of The Issue Class Action, Laura J. Hines

Indiana Law Journal

No abstract provided.

Hubbard V. Greeson: Indiana's Misapplication Of The Tort Sections Of The Restatement (Second) Of Conflict Of Laws, David A. Moore

Indiana Law Journal

No abstract provided.

The Avid Sportsman And The Scope For Self-Protection: When Exculpatory Clauses Should Be Enforced, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

Avoiding The Mistakes Of Terrell R.: The Undoing Of The California Tort Claims Act And The Move To Absolute Governmental Immunity In Foster Care Placement And Supervision, Austen L. Parrish

Articles by Maurer Faculty

This article addresses the issue of governmental immunity and mandatory duty liability in the context of foster child abuse. The article should be of interest to children's rights organizations, legal scholars, practitioners and judges who face governmental liability issues related to the California foster care system.

The California Tort Claims Act has, until recently, long served as an important means by which foster children may obtain recourse from the government for injuries caused by social worker negligence. In the late 1990s, however, the California courts of appeal retreat - without justification - from the dictates of the Tort Claims Act. …

"United We Stand": Managing Choice-Of- Law Problems In September-11-Based Toxic Torts Through Federal Substantive Mass- Tort Law, Kenneth G. Kubes

Indiana Law Journal

No abstract provided.

A Right Without A Potent Remedy: Indiana's Bad Faith Insurance Doctrine Leaves Injured Third Parties Without Full Redress, Gregory A. Bullman

Indiana Law Journal

No abstract provided.

The Implications Of Kumho Tire: Applying Daubert Analysis To Warning-Label Testimony In Products Liability Cases, Sara K. Ledford

Indiana Law Journal

No abstract provided.

Limiting Tort Liability For Online Third-Party Content Under Section 230 Of The Communications Act, Jonathan A. Friedman, Francis M. Buono

Federal Communications Law Journal

Section 230 of the Communications Act provides online service providers (OSPs) with immunity from liability for harms arising from third-party content that is made available through an OSP's services. Some courts have recently held that section 230 immunity covers not only defamation but any tort claim that would make an OSP liable for information originating from the OSP's users or commercial partners. This Article argues that section 230 has been properly interpreted by the courts and that, contrary to the claims of critics, those decisions have not created a disincentive for OSPs aggressively to monitor their sites for defamatory or …

The Need For A Third Conflicts Restatement (And A Proposal For Tort Conflicts), Symeon C. Symeonides

Indiana Law Journal

Symposium: Preparing for the Next Century-A New Restatement of Conflicts?

Tort Liability, Religious Entities, And The Decline Of Constitutional Protection, Scott C. Idleman

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Cooling The Hot Pursuit: Toward A Categorical Approach, Travis N. Jensen

Indiana Law Journal

No abstract provided.

Cigarette Law, Daniel Givelber

Indiana Law Journal

No abstract provided.

How U.S. Procedure Skews Tort Law Incentives, Jonathan T. Molot

Indiana Law Journal

No abstract provided.