Torts Commons^™

Optimal Liability For Terrorism, Darius N. Lakdawalla, Eric L. Talley

Faculty Scholarship

This paper analyzes the normative role for civil liability in aligning terrorism precaution incentives, when the perpetrators of terrorism are unreachable by courts or regulators. We consider the strategic interaction among targets, subsidiary victims, and terrorists within a sequential, game-theoretic model. The model reveals that, while an "optimal" liability regime indeed exists, its features appear at odds with conventional legal templates. For example, it frequently prescribes damages payments from seemingly unlikely defendants, directing them to seemingly unlikely plaintiffs. The challenge of introducing such a regime using existing tort law doctrines, therefore, is likely to be prohibitive. Instead, we argue, efficient …

Managed Process, Due Care: Structures Of Accountability In Health Care, Nan D. Hunter

Georgetown Law Faculty Publications and Other Works

Almost unnoticed, a new kind of adjudication system has appeared in American law. In forty-one states and the District of Columbia, special entities have been established to resolve contract and tort claims. State law created and mandates each system; these are not arbitrations agreed to by contract between the parties. Despite their public nature, however, these systems are not offered or operated by courts; the public function of adjudication is entirely outsourced to private actors. The decision-makers are neither elected nor appointed, nor are they public sector employees; they work in private companies. Most do not write opinions, and they …

The Modern Age Of Informed Consent, Barbara L. Atwell

University of Richmond Law Review

This essay explores the informed consent ramifications of the confluence of these two phenomena: developments in medical technology and emerging adulthood. In particular, it explores consent to medical treatments by emerging adults that are both elective and irreversible. In such cases, policy considerations dictate that additional safeguards be implemented to ensure that the consent given is truly informed. Part II of this essay provides an overview of the informed consent doctrine and outlines a variety of advancements in elective medical technology. Part III explores the concept of emerging adulthood. Part IV suggests that when emerging adults seek medical treatments that …

Tegman V. Accident & Medical Investigations, Inc.: The Re-Modification Of Modified Joint And Several Liability By Judicial Fiat, Victor J. Torres

Seattle University Law Review

This Note explores the Tegman decision in the context of joint and several liability between negligent and intentional actors within Washington State. Part II places Washington tort law into perspective, including the doctrine of joint and several liability, both before and after the Tort Reform Act of 1986. Part III discusses the Tegman decision, methods used in other jurisdictions for dealing with similar situations, and potential solutions to the problems posed by the Tegman holding. Finally, Part IV concludes and urges both the court to reconsider its ruling in Tegman and the legislature to clarify its intent.

The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk

Seattle University Law Review

This Article considers whether state damages caps are constitutional and examines recent studies suggesting that damages caps are not achieving their intended goals. Given the mounting evidence against the effectiveness of damages caps and the questions about their constitutional validity, this Article proposes moving away from legislative caps on damages. Instead, this Article argues for a modified market model based on a combination of improved care, which would include improvements in service; better peer review; and, if necessary, legislation which would be designed to protect the confidentiality of peer review, reduce frivolous lawsuits, and regulate insurance rate increases. Part II …

Language, Morals, And Conceptual Frameworks In Dispute Resolution: Establishing, Employing, And Managing The Logos, Michael T. Wawrzycki

Cardozo Journal of Conflict Resolution

Any lawyer knows that words and language are important. A single word can derail a painstakingly written contract; the characterization of a would-be killer as a victim framed by racist police officers, rather than a jealous husband, can change the outcome of a case. Yet like many maxims, this important lesson is often forgotten when one is not confronted with the direct principles of words and language. Moreover, even most lawyers do not fully understand how to appropriately utilize the language tools that can change outcomes: myopically focusing on specific issues or characterizations rather than the overall conceptual frames.

Contract Law—The Collision Of Tort And Contract Law: Validity And Enforceability Of Exculpatory Clauses In Arkansas. Jordan V. Diamond Equipment, 2005 Wl 984513 (2005)., John G. Shram

University of Arkansas at Little Rock Law Review

No abstract provided.

As Soft As Tofu: Consumer Product Defamation On The Chinese Internet, Elizabeth Spahn

Vanderbilt Journal of Transnational Law

This Article examines the most notorious Chinese internet defamation case, Wang Hong v. Maxstation, which awarded substantial damages against an individual consumer as well as two online magazines for criticizing a laptop product on the internet. The case created a widespread political controversy on the internet in China, highlighting an underlying tension in the current policies of the Chinese government, which promotes a more open market economy while maintaining tight censorship over public speech. The case developed landmark legal doctrine in China, extending judge made defamation law while ignoring the Chinese consumer protection statute. Extending defamation doctrine to include factual …

Reassessing Charitable Immunity In Virginia, Carl W. Tobias

Law Faculty Publications

Although most states have legislatively or judicially abolished the once-prevalent doctrine of charitable immunity, the Supreme Court of Virginia and the Virginia General Assembly have essentially retained the doctrine intact. Moreover, the Supreme Court of Virginia has declared on numerous occasions that it is the prerogative of the General Assembly, not the court, to abolish charitable immunity. Because Virginia doctrinal developments which involve charitable immunity do not comport with trends across the country and have significant implications for plaintiffs, and for defendants which assert charitable immunity, these doctrinal developments warrant analysis. This essay undertakes that effort.

Mandatory Mediation: The Extra Dose Needed To Cure The Medical Malpractice Crisis, Florence Yee

Cardozo Journal of Conflict Resolution

This Note discusses the advantages and drawbacks of mandating participation in mediation in medical malpractice disputes. Part II of this Note reviews the extent of the current medical malpractice crisis. Part III examines litigation as the traditional means of resolving medical malpractice disputes and suggests that litigation's weaknesses eclipse any of its strengths. Part IV evaluates the lingering challenges to arbitration, accounting for its ineffectiveness in resolving medical malpractice disputes. Part V analyzes why mediation may be the better alternative to both litigation and arbitration in resolving such disputes, and how its hurdles can be best surmounted by mandatory mediation. …

The (Legal) Pains Of Vioxx: Why Product Liability Can Make Products More Dangerous, Omri Ben-Shahar

Articles

Comparing the experience of Vioxx and Celebrex leads Omri Ben-Shahar to think that stiff product liability has the perverse effect of inducing manufacturers of defective products to leave these products on the market, rather than withdraw them.

Resolving Medical Malpractice Claims In The Medicare Program: Can It Be Done?, Eleanor D. Kinney, William M. Sage

Faculty Scholarship

There is increasing interest in an integrated approach to patient safety and medical liability among policymakers. We have proposed Medicareled malpractice reform that would provide Medicare beneficiaries with better safety, improved communication in the event of error, preservation of therapeutic relationships, timely settlement, and fair compensation at a lower administrative cost. Disputes in the reformed system would be adjudicated by Medicare's existing administrative appeals system that would work together with Medicare's quality improvement regulation and payment policy to reduce errors and compensate injured patients.

Despite the laudable rationale for Medicare-led malpractice reform, important issues attend the constitutional and statutory authority …

The Role Of Medicare In Medical Malpractice Reform, William M. Sage

Faculty Scholarship

The medical malpractice crisis we think we are in is not the medical malpractice crisis we actually are in. Today's malpractice crisis is not an epidemic of lawsuits, impressionable juries, or even excessive insurance premiums. The real medical malpractice crisis is that the law has formed little connection between the malpractice system and the health care system.

Congressional Power And State Court Jurisdiction, Anthony J. Bellia Jr.

Journal Articles

Federal laws that regulate state institutions give rise to what the Supreme Court has described as the oldest question of constitutional law. In recent years, the Court has confronted questions of congressional power to regulate state legislatures and executives, but has not directly confronted any question of congressional power to regulate state courts. Since the Founding, questions of congressional power to regulate state court jurisdiction of Article III cases have arisen - most notably, congressional power to assign jurisdiction of federal criminal cases to state courts. Today, significant questions of congressional power to regulate state court jurisdiction over non-Article III …

The Allocation Problem In Multiple-Claimant Representations, Paul H. Edelman, Richard A. Nagareda, Charles Silver

Vanderbilt Law School Faculty Publications

Multiple-claimant representations-classa ctions and other group lawsuits-pose two principal-agent problems: Shirking (failure to maximize the aggregate recovery) and misallocation (distribution of the aggregate recovery other than according to the relative value of claims). Clients have dealt with these problems separately, using contingent percentage fees to motivate lawyers to maximize the aggregate recovery and monitoring devices (disclosure requirements, client control rights, and third-party review) to encourage appropriate allocations. The scholarly literature has proceeded on the premise that monitoring devices are needed to police misallocations, because the fee calculus cannot do the entire job. This paper shows that this premise is mistaken …

Rider Beware: Relying On The Courts And A Nationalized Rating System To Address The Duty Of Care Owed To Amusement Park Attraction Guests, Tobias Butler

Vanderbilt Journal of Entertainment & Technology Law

This note explores the history of amusement park attraction regulation, including both the legislative and judicial treatment, and highlights the deficiencies in court approaches in light of "common carrier" law. First, is a brief history of thrill attractions in America as well as regulation of these attractions by both the legislature and judiciary. Specifically it will discuss the major approaches courts have taken in applying or refusing to apply the "common carrier" definition to these attractions. Second, it will analyze why any standard less than "utmost care" does not provide sufficient power for the courts to create a consistent standard …

Reforming The Securities Class Action: On Deterrence And Its Implementation, John C. Coffee Jr.

Faculty Scholarship

Securities class actions impose enormous penalties, but they achieve little compensation and only limited deterrence. This is because of a basic circularity underlying the securities class action: When damages are imposed on the corporation, they essentially fall on diversified shareholders, thereby producing mainly pocket-shifting wealth transfers among shareholders. The current equilibrium benefits corporate insiders, insurers, and plaintiffs' attorneys, but not investors. The appropriate answer to this problem is not to abandon securities litigation, but to shift the incidence of its penalties so that, in the secondary market context, they fall less on the corporation and more on those actors who …

Reining In The Data Traders: A Tort For The Misuse Of Personal Information, Sarah Ludington

Faculty Scholarship

In 2005, three spectacular data security breaches focused public attention on the vast databases of personal information held by data traders such as ChoicePoint and LexisNexis, and the vulnerability of that data. The personal information of hundreds of thousands of people had either been hacked or sold to identity thieves, yet the data traders refused to reveal to those people the specifics of the information sold or stolen. While Congress and many state legislatures swiftly introduced bills to force data traders to be more accountable to their data subjects, fewer states actually enacted laws, and none of the federal bills …

The Unwarranted Conclusions Drawn From Vincent V. Lake Erie Transportation Co. Concerning The Defense Of Necessity, George C. Christie

Faculty Scholarship

No abstract provided.

How Far Is The 'Door Ajar'? Whether Rape As Torture Is Actionable Under The Alien Tort Statute After Sosa, Zachary S. Kahn

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Brief Amici Curiae In Support Of Respondent, Phillip Morris, Usa, Neil Vidmar

Faculty Scholarship

Brief of Neil Vidmar, et al. Amici Curiae in support of Respondent, Phillip Morris, USA v. Williams, No. 15-1256 (U.S. Supreme Court, September 15, 2006) In Williams v. Philip Morris (1999) an Oregon jury awarded the plaintiff $800,000 in compensatory damages and $79.5 million in punitive damages, a verdict upheld by the Oregon Supreme Court, but appealed to the U.S. Supreme Court (oral argument set for Oct 31, 2006). Critics of punitive damages argue that (a) juries are incompetent, irrational or biased in awarding punitive damages and (b) judges and appellate courts fail to police excessive verdicts. This amicus brief …

A Model Mass Tort: The Ppa Experience, Francis Mcgovern, Barbara J. Rothstein, Sara Jael Dion

Faculty Scholarship

Abstract not available

A Model State Mass Tort Settlement Statute, Francis Mcgovern

Faculty Scholarship

Abstract not available

A Proposed Settlement Rule For Mass Torts, Francis Mcgovern

Faculty Scholarship

Abstract not available

The Evolution Of Asbestos Bankruptcy Trust Distribution Plans, Francis Mcgovern

Faculty Scholarship

The evolution of asbestos litigation from the early 1970s to the present has become the source of much analysis. One commentator divides this history into several phases: the heroic phase, bureaucratic floundering, adaptation and maturity, search for global settlement, expansion of the number of cases, and legislative reform in a new era. A neglected aspect of the history of asbestos litigation has been the evolution of asbestos bankruptcy trust distribution plans. Since 1982 there have been more than 70 corporations which have filed bankruptcy proceedings because of their exposure to asbestos liability. As these corporations emerge from bankruptcy, their plans …

Redefining Physicians' Duties: An Argument For Eliminating The Physician-Patient Relationship Requirement In Actions For Medical Malpractice, Patrick D. Blake

Georgia Law Review

Nearly every state requires a patient to prove the existence of a formal physician-patient relationship in order to proceed with a claim for medical malpractice. In the absence of such a relationship, a physician's actions are measured by an ordinary negligence standard instead of the professional standard of care. Because courts have traditionally held that independent medical examinations, such as pre-employment health screenings, do not give rise to formal physician-patient relationships, individuals undergoing these examinations have been prevented from bringing malpractice claims against physicians who fail to disclose important health information detected during the examination. Recently, a small number of …

A Restatement (Third) Of Intentional Torts?, Kenneth Simons

Faculty Scholarship

Some intentional tort doctrines have developed in intriguing ways since the Restatement Second was published, and other doctrines remain contentious or obscure. For example, disagreement persists about whether the tort of battery requires merely the (single) intent to make a nonconsensual contact, or the (dual) intent both (1) to contact and (2) either to harm or to offend. The single intent view is much more plausible; the dual intent view cannot make much sense of the liability of well-intentioned doctors for battery if they exceed the patient's consent, or the liability of pranksters, or the well-accepted doctrine of apparent consent. …

Liability Externalities And The Law: A Comment On Cooter And Porat, Keith N. Hylton

Faculty Scholarship

Robert Cooter and Ariel Porat have offered a simple model of tort liability with sensible reform proposals. Their focus is in on damage levels, and how those levels can be modified to reflect the socially desirable level of externalization. However, to the extent that there is any gain to be achieved by modifying damage awards, it would be better to secure this gain through other approaches, such as adopting a more careful analysis of factual causation or reducing the likelihood of judicial error.

Torts And Choice Of Law: Searching For Principles, Keith N. Hylton

Faculty Scholarship

If a tortious act (e.g., negligently firing a rifle) occurs in state X and the harm (e.g., killing a bystander) occurs in state Y, which state's law should apply? This is a simple example of the choice of law problem in torts. The problem arises between states or provinces with different laws within one nation and between different nations. In this article I discuss this problem largely in terms of incentive effects and also consider where this topic might be addressed in a torts course.