Torts Commons^™

Genuine Tort Reform, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation To North Carolina Legislators, Michelle Mcentire

Campbell Law Review

Part I of this Comment will provide an overview of the national perspective on these three types of prenatal negligence claims. Part II will discuss North Carolina's viewpoint and the evolution of its case law addressing prenatal negligence. Part III examines fundamental rights recognized by the United States Supreme Court and related North Carolina laws. Part IV considers the policy issues dominating the debate surrounding prenatal torts. Part V suggests North Carolina should protect the rights of expectant parents through legislation allowing medical malpractice claims for post-conception prenatal negligence.

Federal Malpractice In Indian Country And The "Law Of The Place": A Re-Examination Of Williams V. United States Under Existing Law Of The Eastern Band Of Cherokee Indians, J. Matthew Martin

Campbell Law Review

This paper analyzes the law applicable in malpractice cases occurring within Indian Country and brought under the Federal Tort Claims Act, applying the "Law of the Place." In particular, this paper argues that the law of the Eastern Band of Cherokee Indians, including the customs and traditions of the Tribe, should have been applied by the Federal Courts in lieu of the law of North Carolina in Williams v. United States. The paper concludes by suggesting that a complete "laboratory" of Federalism should include the application of the laws of the respective Tribes where Federal medical negligence occurs.

Conspiracy Theories: Is There A Place For Civil Conspiracy In Products Liability Litigation?, Richard C. Ausness

Law Faculty Scholarly Articles

A civil conspiracy is a group of two or more persons acting together to achieve an unlawful objective or to achieve a lawful objective by unlawful or criminal means. During the past two decades, plaintiffs have brought numerous civil conspiracy claims against product manufacturers. The defendants in these cases have included manufacturers or producers of tobacco products, asbestos, pharmaceuticals, lead-based paint, multi-rim truck wheels, and gasoline additives. Surprisingly, less than half of the civil conspiracy claims have made it to trial. This unimpressive success rate suggests that courts are not very receptive to civil conspiracy claims even when there is …

Derailing The Gravy Train: A Three Pronged Approach To End Fraud In Mass-Tort Medical Diagnosing, Matthew Mall

William & Mary Law Review

No abstract provided.

Sleight Of Hand, Benjamin C. Zipursky

William & Mary Law Review

No abstract provided.

Introductory Remarks: Explaining Tort Law, Michael S. Green

William & Mary Law Review

No abstract provided.

The State Of The Judiciary: A Corporate Perspective, Larry D. Thompson, Charles J. Cooper

Scholarly Works

The rule of law depends on highly talented, independent judges who conscientiously strive to ensure that the law is consistently applied in a principled and predictable manner. This Essay addresses two potential threats to judicial independence and the rule of law that we believe warrant special attention at this time. First, inadequate judicial salaries pose a threat to the quality and independence of the judiciary. Judges' real pay has declined substantially over the past generation, even as the compensation of other callings within the legal profession has risen dramatically. This growing disparity in pay has prompted an increasing number of …

Yerushalmi V. Polaris Imports Ltd., Esther Hayut, Miriam Naor, Asher Grunis

Translated Opinions

Facts: The first respondent agreed to sponsor the first appellant to represent it in a motorbike race in Egypt. In the race the first appellant was seriously injured. There was no statutory duty to take out personal accident insurance for the first appellant, and no such insurance had been taken out. The main issue in the appeal was whether the first respondent had been negligent in not taking out insurance for the first appellant or at least in not ascertaining that the first appellant had taken out insurance for himself.

Held: In general, where there is no statutory duty to …

Do Defendants Pay What Juries Award - Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988-2003, David A. Hyman, Bernard S. Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988-2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received "haircuts." Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus pre-judgment …

A Products Liability Theory For The Judicial Regulation Of Insurance Policies, Daniel Schwarcz

William & Mary Law Review

Many insurance law commentators believe that judges should regulate the substance of insurance policies by refusing to enforce insurance policy terms that are exploitive or otherwise unfair. The most common guide for the judicial regulation of insurance policies is the "reasonable expectations doctrine," which requires courts to disregard coverage restrictions that are beyond insureds' reasonable expectations unless the insurer specifically informed the insured about the restriction at the time of purchase. This Article argues that although the judiciary has a potential role to play in policing insurance policy terms, that role should not be defined by reference to consumers' reasonable …

Do Defendants Pay What Juries Award? Post-Verdict Haircuts In Texas Medical Malpractice Cases, 1988–2003, David A. Hyman, Bernard Black, Kathryn Zeiler, Charles Silver, William M. Sage

Faculty Scholarship

Legal scholars, legislators, policy advocates, and the news media frequently use jury verdicts to draw conclusions about the performance of the tort system. However, actual payouts can differ greatly from verdicts. We report evidence on post-verdict payouts from the most comprehensive longitudinal study of matched jury verdicts and payouts. Using data on all insured medical malpractice claims in Texas from 1988–2003 in which the plaintiff received at least $25,000 (in 1988 dollars) following a jury trial, we find that most jury awards received “haircuts.” Seventy-five percent of plaintiffs received a payout less than the adjusted verdict (jury verdict plus prejudgment …

Why Are Demonstrations Of Comprehensive Malpractice Reform So (At All) Controversial, William M. Sage

Faculty Scholarship

We are currently coming to the end of what I have described as the first malpractice crisis of the 21st century. Malpractice crises, which are defined by shrinking liability coverage and/or rising premiums, occur periodically. The insurance crisis that now seems to be ebbing was different in certain ways from its 20th century predecessors, but will almost certainly not be the last such period to arise. As interest in "solving" this crisis wanes for various reasons, we have to ask what we have learned from the last five years. In my opinion, this crisis has produced strong arguments for testing …

Why Preemption Proponents Are Wrong, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

The basic idea of federal preemption is easily stated: It is a constitutionally mandated principle that demands that federal law trumps state law when the two conflict or in the rare instances when a federal law is so comprehensive that there’s no role left for state law to fill. But in practice, courts have often had difficulty applying the principle.

For plaintiff lawyers, preemption is an ever-present worry. When your client has been injured by a defective car, truck, medical device, boat, tobacco product, pesticide, or mislabeled drug, or has been victimized by a bank or other lending institution, the …

News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert

ExpressO

With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.

The Price-Anderson Public Liability Action And Strict Liability, Donald E. Jose, Michael A. Garza

ExpressO

Nuclear Power and nuclear weapons plants seem to be an ultrahazardous activity for which strict liability should apply. However, unusual provisions of the Price-Anderson Act serve to shield nuclear power and nuclear weapons plants and associated activities from strict liability unless the federaq agency regulating the activity determins that a special from of strict liability can be applied.

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman

ExpressO

For several decades law and economic scholars have employed the tools of price theory in order to evaluate an array of legal questions ranging from criminal sanctions to contract remedies. This vast body of literature implicitly assumed that all payments made through the legal system are fungible. In other words, just as a dollar paid for a tomato is identical to a dollar paid for a cucumber, so are a dollar paid as a pollution tax to the government and a dollar paid as compensation to the party injured by the pollution. In this study we challenge this assumption, and …

Fuck, Christopher M. Fairman

Cardozo Law Review

No abstract provided.

Legal Fictions In Pierson V. Post, Andrea Mcdowell

Michigan Law Review

American courts and citizens generally take the importance of private property for granted. Scholars have sought to explain its primacy using numerous legal doctrines, including natural law, the Lockean principle of a right to the product of one's labor, Law & Economics theories about the incentives created by property ownership, and the importance of bright line rules. The leading case on the necessity of private property, Pierson v. Post, makes all four of these points. This Article argues that Pierson has been misunderstood. Pierson was in fact a defective torts case that the judges shoe-horned into a property mold …

Cyber-Extortion: Duties And Liabilities Related To The Elephant In The Server Room, Adam J. Sulkowski

ExpressO

This is a comprehensive analysis of the legal frameworks related to cyber-extortion – the practice of demanding money in exchange for not carrying out threats to commit harm that would involve a victim's information systems. The author hopes it will catalyze an urgently needed discussion of relevant public policy concerns.

Cyber-extortion has, by all accounts, become a common, professionalized and profit-driven criminal pursuit targeting businesses. 17% of businesses in a recent survey indicated having received a cyber-extortion demand. An additional 13% of respondents were not sure if their business had received such a demand.

Awareness of the risks of cybercrime …

Negligence: Idaho Cases And Materials, Dale D. Goble

Books

Course supplement packet for class held at the University of Idaho College of Law.

Acts And Omissions As Positive And Negative Causes, Richard W. Wright

All Faculty Scholarship

No abstract provided.

Reservoirs Of Danger: The Evolution Of Public And Private Law At The Dawn Of The Information Age, Danielle Keats Citron

Faculty Scholarship

A defining problem at the dawn of the Information Age will be securing computer databases of ultra-sensitive personal information. These reservoirs of data fuel our Internet economy but endanger individuals when their information escapes into the hands of cyber-criminals. This juxtaposition of opportunities for rapid economic growth and novel dangers recalls similar challenges society and law faced at the outset of the Industrial Age. Then, reservoirs collected water to power textile mills: the water was harmless in repose but wrought havoc when it escaped. After initially resisting Rylands v. Fletcher’s strict liability standard as undermining economic development, American courts …

Corporate Accountability For Environmental Human Rights Abuse In The Developing Nations: Making The Case For Punitive Damages Under The Alien Tort Claims Act, Audrey Koecher

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …

Reflecting On Negligence Law And The Catholic Experience: Comparing Apples And Elephants, Randy Lee

St. Thomas Law Review

At the conclusion of a popular film, a bride's father observes that even between apples and oranges, there is common ground; after all, as different as apples and oranges may be, they are both fruit. Similarly, one might begin the enterprise of comparing torts and Catholicism by expecting to find at least some common ground because despite their differences, they are both law. In functioning as such, both claim to guide people to modes of better behavior, and both are communicated in languages that speak of justice and mercy, good and bad, right and wrong, and even final judgments. Under …

Choice Of Law And Predictability Of Decisions In Products Liability Cases, Michael Ena

Fordham Urban Law Journal

This Comment explores the complicated choice of law questions arising in products liability cases where the product in question is often produced in one state, sold in another, and caused an injury in a third. Which state's law will be used is often a highly contested issue among the interested parties to such a suit. Because of the lack of uniformity in the choice of law methodologies and the differences in rules of law among the states, decisions are often inconsistent and highly unpredictable. Predictability of law is especially important in the products liability context for identification of business risks …

Against Genetic Exceptionalism: An Argument In Favor Of The Viability Of Preconception Genetic Torts, Daniel S. Goldberg

Journal of Health Care Law and Policy

No abstract provided.

Minneapolis Bridge Collapse: Motivation To Be Smarter On Infrastructure Or Latest In A Trend?, Mary Bortscheller

Sustainable Development Law & Policy

No abstract provided.