Torts Commons^™

Regulation Of Blog Campaign Advocacy On The Internet: Comparing U.S., German, And Eu Approaches, Allison R. Hayward

Cardozo Journal of International and Comparative Law

This essay examines how U.S., German, and EU laws have treated the regulation of political commentary on the Internet. As political blogging grows in popularity, the reach of these web sites, and their influence in political campaigns, may make them a target for regulation by rivals and incumbents, both at home and abroad. Since ordinarily any URL can be reached from anywhere with Internet access, conflicting domestic rules about what can be said (and who can say it) present potential for conflicting rules on blogging.

In brief, U.S. law protects blogging content, but may impose restrictions on the source of …

Injunctions For Defamation, Juries, And And The Clarifying Lens Of 1868, Stephen A. Siegel

Buffalo Law Review

No abstract provided.

Recent Developments In Transnational Human Rights Litigation: A Postscript To Torture As Tort, Francois Larocque

Osgoode Hall Law Journal

Torture as Tort: Comparative Perspectives on the Development of Transnational Tort Litigation marked the first in-depth inquiry by non-US scholars into transnational human rights litigation. In this article, the author canvasses a range of new developments in the field since its publication in 2001. Of special note are five transnational human rights claims, decided after September 11, that were brought in Canadian and British courts. The author mines these cases for insights into other important developments involving the American Alien Tort Statute (Part I) corporate complicity in human rights abuses (Part II) the expansion of common law jurisdiction to include …

Victorian Tort Liability For Workplace Injuries, Michael Ashley Stein

Faculty Publications

The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria's ascension. The second Workman's Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers' liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers' liability. The means these judges used included creating the defence of common employment, widely applying the …

Chim-Nir Flight Services V. Tel Aviv Stock Exchange, Edna Arbel, Eliezer Rivlin, David Cheshin

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Petitioner is the holder of leasing rights on a real estate property, which is held in collateral by the Second and Third Respondent. According to the agreement between them, the payment for realizing the collateral will be divided in a portion of 75 per cent to the Second Respondent (HaPoalim Bank) and 25 per cent to the Third Respondent (Le’umi Bank). HaPoalim Bank …

Who's On First?: Why Philip Morris Usa V. Williams Left Juries Confused About Whose Injuries Can Be Considered When Determining Punitive Damages, Steven Moulds

Mercer Law Review

For the third time in eleven years, the United States Supreme Court imposed constitutional limits on punitive damage awards. In Philip Morris USA v. Williams, the Court, in a 5-4 decision, held that punitive damages cannot be used to punish a defendant for injuries that the defendant infficted upon nonparties to the case. However, the Court also held that injuries to nonparties can be considered when determining the reprehensibility of the defendant's conduct under the "Gore guideposts." Nevertheless, this decision is important for trial lawyers for what the Court did not hold. Once again, the Court passed on the …

Is There A Duty?: Limiting College And University Liability For Student Suicide, Susanna G. Dyer

Michigan Law Review

This Note argues that nonclinician administrators employed by institutions of higher education do not have a special relationship with their students such that they have a duty to act with reasonable care to prevent a foreseeable student suicide. Courts that have in recent years ruled to the contrary have done so by incorrectly basing their duty-of-care analysis on foreseeability of harm alone. With an eye toward a proper duty-of-care analysis, this Note analyzes multiple factors to reach its conclusion, including the ideal relationship between colleges and their students and the burden on and capability of colleges to protect their students …

Finding Fault: Implications Of Importing The Title Vii Standard For Vicarious Punitive Liability To The Fair Housing Act, Jessica Reingold Katz

Cardozo Law Review

No abstract provided.

All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang

William & Mary Law Review

No abstract provided.

Cafa's Impact On Litigation As A Public Good, Elizabeth Chamblee Burch

Scholarly Works

Class actions regulate when government fails. Perhaps this use as an ex post remedy when ex ante regulation founders explains the fervor and rhetoric surrounding Rule 23's political life. In truth, the class action does more than aggregate; it augments government policing and generates external societal benefits. These societal benefits - externalities - are the spillover effects from facilitating small claims litigation. In federalizing class actions through the Class Action Fairness Act (CAFA), Congress, in some ways, impeded class action practice, thereby negating its positive externalities and inhibiting backdoor regulation. This Article critically considers those effects on the common good. …

Summary Of Turner V. Mandalay Sports Entertainment, 124 Nev. Adv. Op. No. 20, Tyler James Watson

Nevada Supreme Court Summaries

Appeal from a district court order granting summary judgment in a tort case brought against Mandalay Sports Entertainment, owner of the Las Vegas 51s.

Reformulating Outrage: A Critical Analysis Of The Problematic Tort Of Iied, Russell Fraker

Vanderbilt Law Review

The intentional infliction of emotional distress ("IIED"), also known as the tort of outrage, is a relatively new cause of action, first appearing in the legal academic literature during the 1930s. Since that time, IIED has gained widespread acceptance and is now recognized in all U.S. jurisdictions, with most courts invoking the definition set forth in the Restatement (Second) of Torts. Despite this general acceptance of the tort, courts routinely assert that IIED is a disfavored cause of action. Courts appear wary of holding defendants liable for plaintiffs' emotional injuries and therefore seek to discourage such claims.

In their efforts …

Paying With Their Lives: The Status Of Compensation For 9/11 Health Effects: Hearing Before The H. Comm. On The Judiciary, 110th Cong., Apr. 1, 2008 (Statement Of Kenneth Feinberg, Adjunct Prof. Of Law, Geo. U. L. Center), Kenneth R. Feinberg

Testimony Before Congress

No abstract provided.

Orders From On High: The Current Struggle Over Medicaid Third Party Recovery Between North Carolina And The Supreme Court Of The United States, Allen N. Trask Iii

Campbell Law Review

This Comment will first present a brief legal background of the Medicaid program, and specifically its presence in North Carolina. It will then explore the federal statutes which broadly govern Medicaid recovery from third parties, as well the North Carolina Medicaid statutes which specifically govern this area of recovery. It will explore the two decisions, Ezell and Ahlborn, which have clouded this area in North Carolina. Following that explanation, the aforementioned hypothetical will be revisited and taken through both the North Carolina and United States Supreme Court's analytical models. Finally, suggestions for both statutory and judicial resolutions of this issue …

Judicial Hellholes, Lawsuit Climates And Bad Social Science: Lessons From West Virginia, Elizabeth G. Thornburg

West Virginia Law Review

No abstract provided.

Scandal, Sukyandaru, And Chouwen, Benjamin L. Liebman

Michigan Law Review

This Review proceeds in four parts. Part I describes West's account of scandal in Japan and the United States and explores some of the ramifications of his account. Part II examines the formation of scandal in contemporary China. Part III compares scandal in China with West's conclusions about scandal in Japan and the United States. Part IV discusses defamation litigation in China, with a view to adding further comparative insight to West's discussion of Japanese libel suits.

Design Defects, David G. Owen

Faculty Publications

No abstract provided.

The Death Of Strict Liability, Peter M. Gerhart

Buffalo Law Review

No abstract provided.

Failed Lawyers And The Sources Of Satire, Charles M. Yablon

Articles

Most of those reading this Essay have ample reason to appreciate the benefits of a good legal education. There is pride in becoming a member of an ancient and learned profession, intellectual challenge in wrestling with complex questions of equity, power and social justice, and satisfaction in the sense of superiority you feel towards your loser friends who did not get into a decent law school.

Blurring The Boundary Lines Between Amateur And Professional Sports, Kenneth D. Ferguson

Faculty Works

The NCAA expends substantial resources to insure that the distinction between amateur and professional sports is maintained in collegiate athletics. Preserving the boundary lines between amateur and professional sports is more than an attempt to ensure philosophical purity or a nostalgic quest for historic preservation. The boundaries between amateur and professional sports are maintained by legal doctrines in several areas.

Application of tort law to coaches' liability for conduct leading to injuries to athletes reflects and preserves the boundary lines between professional and amateur sports. Although the implied assumption of risk doctrine should preserve that distinction, some courts have applied …

Darned If You Due Process, Darned If You Don't! Understanding The Due Process Dilemma For Punitive Damages In Title Vii Class Actions, Paul Edgar Harold, Tracy L. Cole

University of Arkansas at Little Rock Law Review

When Congress expanded the remedies available to Title VII the plaintiffs in the Civil Rights Act of 1991 to include compensatory and punitive damages, it did not realize that it was creating a minefield for certifying would-be Title VII class actions. The Fifth Circuit thoroughly explored many of the new pitfalls and hazards in its landmark opinion in Allison v. Citgo Petroleum Corp. This article attempts to critically evaluate a recent post-Allison trend whereby Title VII plaintiffs seeking class certification have foregone their claims for compensatory damages while still seeking punitive damages. Plaintiffs, relying on the Supreme Court's recent cases …

What Do We Talk About When We Talk About Mass Torts?, Anthony J. Sebok

Michigan Law Review

Twenty years ago, Deborah Hensler and a team of scholars at the RAND Corporation's Institute for Civil Justice issued a report entitled Trends in Tort Litigation: The Story Behind the Statistics. Pressure had been mounting both in the business community and the Republican Party to "reform" tort law throughout the 1980s. There was concern that Americans "egged on by avaricious lawyers, sue[d] too readily, and irresponsible juries and activist judges wayla[id] blameless businesses at enormous cost to social and economic well-being." The RAND report argued that the real risk of a torts "explosion" came from the world of mass …

Due Process And Punitive Damages: An Economic Approach, Keith N. Hylton

Faculty Scholarship

This paper sets out a public choice (rent-seeking) theory of the Due Process Clause, which implies that the function of the clause is to prevent takings through the legislative or common law process. This view of the clause's function supports a preference for expanding rather than contracting the set of entitlements protected by the clause. The Supreme Court's application of due process reasoning in the punitive damages case law is in some respects consistent and in other respects inconsistent with this theory. For the most part, the Court has failed to develop a set of doctrines that would enable lower …

The First Amendment, Journalists, And Sources: A Curious Study In "Reverse Federalism", Rodney A. Smolla

Cardozo Law Review

No abstract provided.

Doctrinal Feedback And (Un)Reasonable Care, James Gibson

Law Faculty Publications

The law frequently derives its content from the practices of the community it regulates. Examples are legion: Tort's reasonable care standard demands that we all exercise the prudence of an "ordinary" person. Ambiguous contracts find meaning in custom and usage of trade. The Fourth Amendment examines our collective expectations of privacy. And so on. This recourse to real-world circumstance has in-tuitive appeal, in that it helps courts resolve fact-dependent disputes and lends legitimacy to their judgments. Yet real-world practice can depart from that which the law expects. For example, suppose a physician provides more than reasonable care - extra tests, …

Tortious Interference With Expectancy Of Inheritance Or Gift--Suggestions For Resort To The Tort, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines the various factual circumstances in which a tort recovery for interference with the expectancy of inheritance or gift might be available, either as the only possible remedy for the disappointed expectant person or as an alternative to a remedy at equity or at probate, and determines, in regard to each circumstance, whether a cause of action in tort should be available. This tort has received recent attention, especially in light of the substantial awards, both compensatory and punitive, in a California Bankruptcy Court, 253 B.R. 550 (Bankr. C.D. Cal 2000), and, on appeal, in the U,S. District …

Brief Of Amicus Curiae Aarp In Support Of Respondents, Warner-Lambert Company Llc V. Kent, No. 06-1498 (U.S. Jan. 18, 2008), Kathryn A. Sabbeth, David C. Vladeck

U.S. Supreme Court Briefs

No abstract provided.

Liability For Possible Wrongs: Causation, Statistical Probability And The Burden Of Proof, In Symposium, The Frontiers Of Tort Law, Richard W. Wright

All Faculty Scholarship

Courts around the world are increasingly considering whether liability should exist in various types of situations in which a plaintiff can prove that a defendant’s tortious conduct may have contributed to the plaintiff’s injury, but it is inherently impossible, given the nature of the situation, for the plaintiff to prove that the defendant’s tortious conduct actually contributed to the injury. The problematic nature of the causal issue is usually recognized when the probability of causation is not greater than 50 percent, with courts adopting different views, depending on the type of situation, on whether liability nevertheless is appropriate and, if …

A Realistic Evaluation Of Climate Change Litigation Through The Lens Of A Hypothetical Lawsuit, Shi-Ling Hsu

Scholarly Publications

Several dozen cases that can be classified as "climate change litigation" have been filed worldwide, and legal scholars have already generated a considerable amount of writing on the phenomenon. The debate and scholarship has sometimes gotten ahead of itself, reflecting on the normative implications of outcomes that are still speculative at this point. This Article seeks to ground this debate by analyzing the actual legal doctrines that may serve as bases for liability, and seeks to make a realistic evaluation of the likelihood of success of these types of suits. Climate change litigation, in its various forms, raises issues of …

Understanding And Problematizing Contractual Tort Subrogation, Brendan S. Maher, Radha A. Pathak

Loyola University Chicago Law Journal

No abstract provided.