Torts Commons^™

A Powers-Based Approach To Idea-Submission Law, Larissa Katz

ExpressO

This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection …

A Law And Economics Perspective On Terrorism, Nuno M. Garoupa , Jonathan Klick, Francesco Parisi

George Mason University School of Law Working Papers Series

This paper reviews the existing law and economics literature on crime, noting where various models might apply to the terror context. Specifically, it focuses on two strands of the literature, deterrence and incapacitation. Challenging the conventional application of the basic rational agent model of crime in the context of terrorism, it considers anti-terror measures enacted by different countries, highlighting how the details of the laws correspond to the insights from economic models of crime. In conclusion, the paper proposes an efficient sorting mechanism in which individuals will be provided with adequate incentives to reveal their type to law enforcement authorities.

Accident Law For Egalitarians, Ronen Avraham, Issa Kohler-Hausmann

ExpressO

The article goes back to the basics. It questions the fairness of our current tort law regime and the philosophical underpinnings advanced in its defense, a theory with its roots in Aristotelian thought, called corrective justice. We critique tort law and corrective justice from a standpoint of egalitarian fairness, inspired by distributive justice philosophers such as John Rawls and Ronald Dworkin. Our argument is that the strict theoretical and institutional insulation of tort law—and the normative theory underlying it, corrective justice—from other institutions and principles of justice, namely distributive and retributive justice, gives rise to deleterious consequences in terms of …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Do Institutions Really Matter? Assessing The Impact Of State Judicial Structures On Citizen Litigiousness, Jeff L. Yates, Paul Brace, Holley Tankersley

ExpressO

No abstract provided.

Cybersecurity, Identity Theft, And The Limits Of Tort Liability, Vincent R. Johnson

ExpressO

This article considers to what extent database possessors (such as credit card companies and universities) can be held liable for harm caused to data subjects (such as consumers, applicants, and alumni) when information relating to those persons is hacked or otherwise subject to improper access. Addressing common-law and statutory sources (including new legislation in 17 states) the article clearly differentiates the duty to safeguard data from the duty to notify data subjects that the security of their information has been breached. By analogy to the “medical-monitoring damages” which some states award in toxic-exposure cases, the article argues that “security-monitoring damages” …

The Difficulty In Winning Restaurant Defamation Cases, Joshua A. Cash

ExpressO

No abstract provided.

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 …

Georgia's New Battleground: Five Georgia Law Professors Examine The State's New Tort Legislation, Lonnie T. Brown, Jr., Ronald L. Carlson, Thomas A. Eaton, C. Ronald Ellington, Michael L. Wells

Popular Media

In February, after several years of debate, the Georgia General Assembly enacted a comprehensive set of tort reform provisions. This fairly complex body of legislation contains 16 separate sections dealing with procedure, evidence and substantive tort issues. Shortly after it was signed into law, five Georgia Law professors sat down with alumni and students to describe parts of the new legislation, to identify some issues that are likely to arise as the new laws go into effect and to speculate about what they think the likely impact will be on litigation.

Torts In Verse: The Foundational Cases, R. Perry Sentell Jr.

Scholarly Works

This Article contains a "verse," "rhyme," or "poem" for each of the truly foundational cases ordinarily studied in first year Torts. The arrangement assumes a typical Torts casebook's order of presentation, but is fairly flexible. Each entry initially sketches the selected case's significance to the body of Tort law and then follows with the verse. The "rhymes" themselves are admittedly (indeed, intentionally) contrived and pedantic, seeking to elicit groans--but hopefully groans of recognition and familiarity. Ideally, the student will most "enjoy" a verse while reading and studying the case itself; indeed, some verse references make little sense otherwise.

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

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 …

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Washington and Lee Law Review

No abstract provided.

Rebooting Cybertort Law, Michael L. Rustad, Thomas H. Koenig

Washington Law Review

Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in § 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of care on ISPs to remove or block ongoing tortious activities on their services when they have been given actual notice. This reform will harmonize American ISP liability law …

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.

Sosa V. Alvarez-Machain And Abu Ghraib--Civil Remedies For Victims Of Extraterritorial Torts By U.S. Military Personnel And Civilian Contractors, Scott J. Borrowman

BYU Law Review

No abstract provided.

The Effects Of Judicial Immunization Of Passive Sellers In Sanns V. Butterfield Ford And A Proposal For The Shifting Nature Of Fault, Jason R. Burt

BYU Law Review

No abstract provided.

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Scholarly Works

This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …

The Challenge To The Individual Causation Requirement In Mass Products Torts, Donald G. Gifford

Faculty Scholarship

This article uses the example of mass products torts to test the traditional principle that requires a specific victim to prove that a particular injurer caused her harm in order to establish tort liability. Proponents of the instrumentalist conception of torts, notably those identified with law and economics such as Calabresi and Posner, view any requirement of individualized causation as “old-fashioned” and inconsistent with their goals of achieving loss minimization and loss distribution or wealth maximization. In contrast, corrective justice theorists, such as Ernest Weinrib, argue that particularized causation is intrinsic to the entire notion of tort liability. The judicial …

Purging Foreseeability, Ricardo J. Bascuas

Vanderbilt Law Review

For those responsible for understanding tort doctrine, the concept of foreseeability is a scourge, and its role in negligence cases is a vexing, crisscrossed morass. Indeed, one torts professor teaches that foreseeability might as well be called "strawberry shortcake," having been bent, muddled, and co-opted to such a degree that it has lost any real meaning.

Foreseeability's role in the element of "duty" in negligence is especially problematic. Courts have long tied the existence of a duty- that is, whether an allegedly negligent defendant owed an obligation of care under the circumstances-to foreseeability. The more foreseeable the risk, the resulting …

A New Kind Of "Outrageous Misconduct": Effects To Undermine The Law's Ability To Deter And Punish Intentional And Outrageous Corporate Behavior, Candace Howard

Student Articles and Papers

The current tort "reform" movement, if successful, will completely undermine our most effective tool for deterring outrageous corporate misconduct: the threat of punitive damages. Such "reform" would have a particularly egregious impact on the environment and public health because, due to a lack of enforcement and the undetectable nature of many pollutants, environmental offenses are often more difficult to deter than other types of offenses. The essay argues that, although rarely imposed for environmental offenses, punitive damages are especially vital in that arena because, when imposed, they are richly deserved. It concludes that, rather than tort reform, what we need …

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.

Air Travel, Accidents And Injuries: Why The New Montreal Convention Is Already Outdated, Andrew Field

Dalhousie Law Journal

The 1999 Convention for the Unification of Certain Rules for International Carriage by Air (the "Montreal Convention") came into force in 2003. It is the latest in a series of attempts to replace a number of variations on the 1929 Warsaw Convention with a single agreement which regulates the rights and liabilities of international air carriers, their passengers and shippers. At the time, the Montreal Convention was hailed as providing better protection and compensation for victims of air accidents. However despite its recent adoption, in relation to claims for death and personal injuries the Montreal Convention is still firmly planted …

Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon

Faculty Publications

No abstract provided.

Does Frye Or Daubert Matter? A Study Of Scientific Admissibility Standards, Edward K. Cheng, Albert Yoon

Vanderbilt Law School Faculty Publications

Nearly every treatment of scientific evidence begins with a faithful comparison between the Frye and Daubert standards. Since 1993, jurists and legal scholars have spiritedly debated which standard is preferable and whether particular states should adopt one standard or the other. These efforts beg the question: Does a state's choice of scientific admissibility standard matter? A growing number of scholars suspect that the answer is no. Under this theory, the import of the Supreme Court's Daubert decision was not in its doctrinal standard, but rather in the general consciousness it raised about the problems of unreliable scientific evidence. This Article …

A Fictional Tale Of Unintended Consequences: A Response To Professor Wertheimer, Aaron Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Purging Foreseeability, W. Jonathan Cardi

Vanderbilt Law Review

For those responsible for understanding tort doctrine, the concept of foreseeability is a scourge, and its role in negligence cases is a vexing, crisscrossed morass. Indeed, one torts professor teaches that foreseeability might as well be called "strawberry shortcake," having been bent, muddled, and co-opted to such a degree that it has lost any real meaning.

Foreseeability's role in the element of "duty" in negligence is especially problematic. Courts have long tied the existence of a duty- that is, whether an allegedly negligent defendant owed an obligation of care under the circumstances-to foreseeability. The more foreseeable the risk, the resulting …

Summary Of Carver V. El-Sabawi, 121 Nev. Adv. Op. 3, Kathleen L. Fellows

Nevada Supreme Court Summaries

An appeal from a district court judgment challenging a jury instruction, which included both a “mere happening instruction” and a res ipsa loquitur instruction, in a medical malpractice case.

Teaching Torts Stories, Leslie Bender

Journal of Legal Education

No abstract provided.