Torts Commons^™

Market Share Liability Beyond Des Cases: The Solution To The Causation Dilemma In Lead Paint Litigation?, Donald G. Gifford, Paolo Pasicolan

Faculty Scholarship

Over 300,000 young children in America—disproportionately poor and children of color—suffer from childhood lead poisoning. This disease ordinarily is caused by the deterioration of lead paint into flakes, chips, and dust that children ingest or inhale. Victims of childhood lead poisoning have tried to sue manufacturers of lead paint or lead pigment, but they face a seemingly insurmountable obstacle. Traditional tort law requires a plaintiff to prove that a specific tortfeasor caused the harm. This is almost impossible in the lead paint context because the paint that caused the harm usually consists of many layers, applied over the course of …

Products Liability In The Twenty-First Century: A Review Of Owen’S Products Liability Law, Richard C. Ausness

Law Faculty Scholarly Articles

Professor Richard C. Ausness reviews Products Liability Law, a treatise by David Owen.

Why Bivens Won't Die: The Legacy Of Peoples V. Cca Detention Centers, Lumen N. Mulligan

Faculty Works

Interpreting recent Supreme Court precedent, the Tenth Circuit, in Peoples v. CCA Detention Centers, held that a federal prisoner confined in a privately run prison may not bring a Bivens suit against the employees of the private prison for violations of his constitutional rights when alternative state-law causes of action are available. The author first reviews the Supreme Court's evolving Bivens jurisprudence and turns next to an overview of the Tenth Circuit's opinion. Third, the author argues that, despite the Tenth Circuit's new approach, putative constitutional claims brought under state-law theories of recovery will often be re-federalized, producing uniform federal …

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Faculty Law Review Articles

This article calls for consideration of the relationship of strong social norms to the tort reform debate. Additionally, it inquires into the concepts of measuring and comparing interests and the judgments of proportionality inherent in traditional legal doctrines, scrutinizing in particular the methodology of comparisons in tort reform.

Part II of the article examines the need to identify, measure, and compare the interests at stake in any legal contest with rigorous consistency.

Part III explores the natural hierarchy among legal norms and the weight accorded various types of interests that deserve legal protection.

Part IV considers the system of measurement …

Assessing The Coverage Carnage: Asbestos Liability And Insurance After Three Decades Of Dispute, Jeffrey W. Stempel

Scholarly Works

Often overlooked are the insurance issues related to asbestos and the degree to which the asbestos mass tort has changed the face of liability insurance and liability insurance law. The asbestos mass tort brought insurance coverage litigation into the big leagues of litigation, adjudication, and scholarly examination (although even the most rabid insurance coverage junkie would concede this is not much silver lining to the asbestos cloud). But after 30 years of big-time liability insurance coverage litigation involving asbestos or influenced by asbestos, what is the outcome? My assessment is:

1. Despite their protestations, insurers have not been unfairly treated …

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

Scholarly Works

The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Engler V. Illinois Farmers Insurance Co. And Negligent Infliction Of Emotional Distress, Michael K. Steenson

Faculty Scholarship

The rules governing negligent infliction of emotional distress claims differ significantly from state to state. The predominant rule is the bystander recovery rule, which permits recovery by persons who are not physically threatened by the defendant’s negligent conduct but who suffer emotional distress from witnessing injury to a third person. In bystander recovery jurisdictions, the required degree of proximity of the plaintiff to the accident scene, how the plaintiff hears about the accident, the plaintiff’s relationship to the person actually injured in the accident, and the proof required to establish severe emotional distress vary, sometimes significantly, from jurisdiction to jurisdiction. …

On The Applicability Of The Silica Mdl Proceeding To Asbestos Litigation, Lester Brickman

Articles

The article argues that the findings from the silica multidistrict litigation (MDL), presided over by U.S. District Court Judge Janis Jack, have significant implications for understanding the fraudulent practices in asbestos litigation. The author contends that both silica and asbestos litigations share a common "entrepreneurial model" where a small group of doctors and screening companies generate specious claims for financial gain, often without proper medical oversight. Judge Jack's findings in the silica MDL, which revealed widespread fraud and manipulation of medical diagnoses, corroborate the author's long-standing critique of asbestos litigation practices.

God V. The Mitigation Of Damages Doctrine: Why Religion Should Be Considered A Pre-Existing Condition, Jennifer Parobek

Journal of Law and Health

According to the 2004-2005 United States Census Bureau Statistical Abstract of the United States, Americans identify with at least thirty-five different self-described Christian religious groups. Of those Christian groups, there are at least four that have special tenets regarding medical treatment that are central to their religious beliefs. Together, members of the Jehovah's Witnesses, Church of God, Pentecostal Free Will Baptist Church, and Christian Science Church constitute slightly more than four-and-a-half percent of the United State's total population. . . Unfortunately, even though the First Amendment of the United States Constitution was designed on our founders' beliefs that religious freedom …

Taking A Bite Out Of The Harmful Effects Of Mercury In Dental Fillings: Advocating For National Legislation For Mercury Amalgams, Kimberly M. Baga

Journal of Law and Health

Mary Stephenson, a fifty-nine-year-old grandmother, visited dozens of counselors and experienced with an array of antidepressants but nothing worked to curb her suicidal feelings. Janie McDowell, a fifty-six-year-old housewife, suffered from hand tremors, leg-muscle spasms, recurring nausea, chronic bladder and kidney infections, severe depression, short-term memory loss, and slurred speech. Freya Koss, a former event planner, experienced dizziness and double vision. Physicians misdiagnosed Koss with lupus, multiple sclerosis, and, finally myasthenia gravis. The common theme among these medical tragedies is that the above victims all returned to being healthy, active adults after the removal of their mercury amalgam dental fillings. …

The Slippery Slope Of Ski Tort Reform: Will The Judiciary Uphold Legislative Intent? — Jagger V. Mohawk Mountain Ski Area, Inc., Joel Bulleigh

Oklahoma Law Review

No abstract provided.

A Tarnished Golden Rule — Why Badillo V. Mid Century Insurance Co. Demands Further Clarification From The Oklahoma Supreme Court Regarding The Tort Of Bad Faith, Andrew Kernan

Oklahoma Law Review

No abstract provided.

How The Fifth Circuit Freed Willy And Harpooned Corporate Ability To Shield Retaliation Suits: A Critique Twenty Years In The Making, Matthew Beery

Oklahoma Law Review

No abstract provided.

When Criminal And Tort Law Incentives Run Into Tight Budgets And Regulatory Discretion, William G. Childs

Faculty Scholarship

Eight-year-old Greyson Yoe was electrocuted while waiting to get on the "Scooters" bumper car ride at the Lake County Fair in northeastern Ohio. The failure to ground the ride structure and damage to a light fixture on the ride caused his death. The day before the electrocution, two inspectors from the Ohio Department of Agriculture (ODA) inspected the ride and passed it as "safe to operate." That inspection was superficial and grossly inadequate, and the completed inspection form had serious misrepresentations. Indeed, the inspectors later admitted that they never reviewed the key electrical items that they checked off on the …

Book Review: Tom Baker's The Medical Malpractice Myth, Barbara A. Noah

Faculty Scholarship

The Author reviews THE MEDICAL MALPRACTICE MYTH by Tom Baker, published by University of Chicago Press, 2005. Baker’s book confronts the idea that medical malpractice litigation is exploding and underserving plaintiffs and that their attorneys receive unjustified rewards while physicians struggle under the burden of high costs. The book strives to debunk the various aspects of this myth and offers directions for reform. Throughout the book, Baker very effectively connects the legal arguments and the insurance and litigation data to his broader points about the politics of tort reform. Baker’s style is concise, lively, and very readable. He effectively weaves …

Liability For Torts In Violation Of International Law: No Hook Under Sosa For Secondary, Complicit Actors, Helena Lynch

NYLS Law Review

No abstract provided.

Maheshwari V. City Of New York, Scott Glotzer

NYLS Law Review

No abstract provided.

Galindo V. Town Of Clarkstown, Eric C. Goldstein

NYLS Law Review

No abstract provided.

How Social Hierarchies Within The Personal Injury Bar Affect Case Screening Decisions, Mary Nell Trautner

NYLS Law Review

No abstract provided.

How The Spider Catches The Fly: Referral Networks In The Plaintiffs’ Personal Injury Bar, Sara Parikh

NYLS Law Review

No abstract provided.

Texas Plaintiffs’ Practice In The Age Of Tort Reform: Survival Of The Fittest — It’S Even More True Now, Stephen Daniels, Joanne Martin

NYLS Law Review

No abstract provided.

Blame It On The Bee Gees: The Attack On Trial Lawyers And Civil Justice, Robert S. Peck, John Vail

NYLS Law Review

No abstract provided.

How The Plaintiffs’ Bar Bars Plaintiffs, Richard L. Abel

NYLS Law Review

No abstract provided.

A Proposal To Use Common Ground That Exists Between The Medical And Legal Professions To Promote A Culture Of Safety, Steven E. Pegalis

NYLS Law Review

No abstract provided.

Knowing Killing And Environmental Law, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

My goal here is modest: I simply wish to defend the view that the moral commitment against knowing killing should play a role in decisions about environmental problems. In recent years, economic analysis has substantially succeeded in de-ethicizing environmental issues; this paper is part of an effort to re-ethicize them. In previous work, I have criticized the use of cost-benefit analysis in making decisions about the environment. One source of my criticism has been the mismatch between moral values and economic valuation. I have, however, tended to leave the moral values I have defended rather vaguely defined. In this paper, …

Sosa V. Alvarez-Machain And Human Rights Claims Against Corporations Under The Alien Tort Statute, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Contrary to the claims of some observers, the Supreme Court's decision in Sosa v. Alvarez-Machain does not sound the death knell for the use of the Alien Tort Statute to maintain human rights claims against private corporations in the U.S. courts. The decision clarifies the nature of claims under the Alien Tort Statue to some extent, and places some limits on the theories available in actions against private corporations, but for the most part such suits remain as viable after Sosa as they were before. That is not to say, however, that victims of corporate human rights violations in developing …

Second Best Damage Action Deterrence, Margo Schlanger

Articles

Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …

Civil Rights Injunctions Over Time: A Case Study Of Jail And Prison Court Orders, Margo Schlanger

Articles

Lawyers obtained the first federal court orders governing prison and jail conditions in the 1960s. This and other types of civil rights injunctive practice flourished in the 1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article's longitudinal account of jail and prison court-order litigation establishes that, to the contrary, correctional court-order litigation did not decline in the late 1980s and early 1990s. Rather, there was essential continuity from the early 1980s until1996, when enactment of the Prison Litigation Reform Act (PLRA) reduced both the stock …

Relative Access To Corrective Speech: A New Test For Requiring Actual Malice, Aaron Perzanowski

Articles

This Article reexamines the First Amendment protections provided by the public figure doctrine. It suggests that the doctrine is rooted in a set of out-dated assumptions regarding the media landscape and, as a result, has failed to adapt in a manner that accounts for our changing communications environment.

The public figure doctrine, which imposes the more rigorous actual malice standard of fault on defamation plaintiffs who enjoy greater access to mass media, was constructed in an era defined by one-to-many communications media. Newspapers, broadcasters, and traditional publishers exhausted the Court's understanding of the means of communicating with mass audiences. As …

Innovation Through Intimidation: An Empirical Account Of Defamation Litigation In China, Benjamin L. Liebman

Faculty Scholarship

Consider two recent defamation cases in Chinese courts. In 2004, Zhang Xide, a former county-level Communist Party boss, sued the authors of a best selling book, An Investigation into China's Peasants. The book exposed official malfeasance on Zhang's watch and the resultant peasant hardships. Zhang demanded an apology from the book's authors and publisher, excision of the offending chapter, 200,000 yuan (approximately U.S.$25,000) for emotional damages, and a share of profits from sales of the book. Zhang sued in a local court on which, not coincidentally, his son sat as a judge.

In 2000, Song Dianwen, a peasant, sued …