Torts Commons^™

The Cleaver, The Violin, And The Scalpel: Duty And The Restatement (Third) Of Torts, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Scuba Diving Buddies: Rights, Obligations, And Liabilities, Phyllis G. Coleman

Faculty Scholarship

A common misconception is that scuba diving is dangerous; the reality is that divers are more likely to be hurt in their cars driving to the dive site than in an underwater accident. Arguably one reason the sport is so safe is the widespread, and often mandatory, use of the buddy system.

A buddy expects his partner to perform a variety of tasks, which include assisting during an emergency. However, a glaring omission in the legal literature is the important issue of what happens when a diver's failure to act results in his buddy's death or serious injuries. This article …

Standard Of Care For Medical Malpractice Claims In Idaho, Monique C. Lillard

Articles

No abstract provided.

The Spy Who Sued The King: Scaling The Fortress Of Executive Immunity For Constitutional Torts In Wilson V. Libby, Scott R. Daniel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Not For The Faint Of Heart: Does A Hospital Owe A Duty To Warn A Squeamish Visitor?, 41 J. Marshall L. Rev. 473 (2008), Marc D. Ginsberg, Tricia E. Mcvicker

UIC Law Review

No abstract provided.

An Analysis Of The Contraction Of Limited Tort Immunity For Recreational Liability In Illinois, 42 J. Marshall L. Rev. 65 (2008), Barnett P. Ruttenberg, Thomas Gianturco

UIC Law Review

No abstract provided.

Democracy And Tort Law In America: The Counter-Revolution, Christopher J. Roederer

West Virginia Law Review

No abstract provided.

Harnessing The Hired Guns: The Substantive Nature Of Ohio Revised Code 2743.43 Under Article Iv, Section 5(B) Of The Ohio Constitution, Patrick Vrobel

Journal of Law and Health

Under Article IV, Section 5(B), rules of procedure that impact the substantive rights of Ohio citizens are considered far too important to be encroached upon by the judiciary. Rules affecting substantive rights, therefore, have been expressly delegated to the legislature. Because rules that regulate the competency of medical experts inevitably encroach upon the ability of a tort victim to seek redress in a court of law, such rules impact substantive rights in very real and tangible ways. As a result, the medical expert statute must control. To find otherwise would permit the judiciary to encroach upon the substantive rights of …

Double Helix, Double Standards: Private Matters And Public People, Teneille R. Brown

Journal of Health Care Law and Policy

No abstract provided.

Tort Liability For Vendors Of Insecure Software: Has The Time Finally Come?, Michael D. Scott

Maryland Law Review

No abstract provided.

Limiting Federal Agency Preemption: Recommendations For A New Federalism Executive Order, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz, James Goodwin

Other Publications

The structure of the U.S. Constitution reflects a profound respect for the principles of federalism and state sovereignty. These principles require the federal government to recognize and encourage opportunities for state and local governments to exercise their authority, especially in areas of traditional state concern such as the protection of the health, safety, and welfare of their citizens. However, over the last six years there has been a coordinated Executive Branch effortto use the regulatory process to shield certain product manufacturers from state tort liability. The Food and Drug Administration, National Highway Traffic Safety Administration, and Consumer Product Safety Commission, …

The Standard Of Care For Health Providers In Idaho, Monique C. Lillard

Articles

No abstract provided.

Understanding The Absence Of A Duty To Reasonably Rescue In American Tort Law, Marin Roger Scordato

Scholarly Articles

The absence in American tort law of a duty to reasonably aid a stranger in peril is perplexing. It is an odd gap in the otherwise nearly pervasive presence of a duty of reasonable care in the modern law of negligence. It utterly fails to accurately articulate our conventional sense of morality and appropriate social behavior. It stands in stark contrast to the treatment of this issue throughout the rest of the world. It is a rule of tort law for which very few commentators have had a kind word.

This Article sets forth a spirited defense of the traditional …

Secrecy In The Courts: At The Tipping Point, Joseph F. Anderson Jr.

Villanova Law Review (1956 - )

No abstract provided.

Sexual Harassment In Education And Student Athletics: A Case For Why Title Ix Sexual Harassment Jurisprudence Should Develop Independently Of Title Vii, Michael E. Buchwald

Maryland Law Review

No abstract provided.

Rethinking Compensation For Mental Distress: A Critique Of The Restatement (Third) §§ 45-47, John L. Diamond

Faculty Scholarship

No abstract provided.

The Pending Farmers' Market Fiasco: Small-Time Farmers, Part-Time Shoppers, And A Big-Time Problem, Brandon Baird

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Psychic Life Of Denial, Susan Derwin

Cardozo Journal of Conflict Resolution

Holocaust deniers have an investment in taking a defensive stance. Theodor Adorno noted that to haggle about how many millions of innocent people were murdered in the Holocaust is degrading. Haggling about numbers is central to holocaust denial. Deborah Lipstadt's investigation of the nuances and varieties of deniers' claims across cultures makes it evident that, whatever their political or ideological objectives, deniers undertake their haggling in response to what they perceive to be an aggressive manipulation of history. Deniers charge that the manipulators are the Jews, who have inflated the number of Jewish deaths during World War II to garner …

“There's Danger Here, Cherie!”: Liability For The Promotion And Marketing Of Drugs And Medical Devices For Off-Label Uses, Richard C. Ausness

Law Faculty Scholarly Articles

Physicians often prescribe prescription drugs and other medications for uses that are not approved by the Food and Drug Administration ("FDA"), and such "off label" prescription is widely accepted within the medical community as a legitimate form of treatment. However, the federal government discourages off-label prescription and use in various ways. For example, the FDA restricts the dissemination of information by drug companies about potential off-label therapies. In addition, federally funded health insurance programs such as Medicaid do not reimburse health care providers for off-label uses. Because drug companies make large profits from off-label prescriptions, they are often tempted to …

Retaliatory Discharge And The Ethical Rules Governing Attorneys, Alex B. Long

University of Colorado Law Review

In Garcetti v. Ceballos, the Supreme Court held that a deputy district attorney who, as part of his job duties, raised concerns with his superiors about possibly unlawful activity and was allegedly fired in response had no First Amendment retaliation claim. In support of its conclusion, the Court suggested that adequate checks already existed at the state and federal level to curb the behavior of employers who engage in unlawful activity and to protect the employees who seek to prevent or expose such activity. In addition to state and federal whistleblower statutes, the Court singled out the rules of professional …

Tort Arbitrage, Robert J. Rhee

UF Law Faculty Publications

The economic models of bargaining and tort law have not been integrated into a coherent theory that reflects the empirical world. This Article models the interaction of settlement dynamics and the theory of negligence. It shows that tort claims are systematically devalued during settlement relative to the legal standard. Central to this thesis is a proper conception and accounting of cost. Cost is typically viewed as the transaction cost of litigation processing. Cost, however, encompasses more than this. Each dispute has a cost of resolution, defined as the discounting effect of risk on legal valuation. A spread between the parties' …

Peterson V. Balach, Obvious Dangers, And The Duty Of Possessors Of Land In Minnesota, Michael K. Steenson

Faculty Scholarship

The purpose of this article is to analyze Minnesota landowners law, with particular emphasis on the impact of Peterson v. Balach. Following a short history of Minnesota law governing possessors’ duties, including a discussion of pre-Peterson v. Balach and Adee v. Evanson cases, the article considers the question of why the courts, post-Peterson v. Balach/Adee v. Evanson, regularly return to pre-Peterson forms to resolve possessor liability issues, particularly in cases involving obvious dangers, and whether the phenomenon is a result of a wrong turn or is a reflection of a conscious policy choice intended to effectively repudiate the progressive position …

Mixing Oil And Water: Reconciling The Substantial Factor And Result-Within-The-Risk Approaches To Proximate Cause, Peter Zablotsky

Cleveland State Law Review

Most recently, however, the courts—the entities mandated to apply proximate cause during the course of the analysis of liability for negligence—appear to have brokered a peace between the dueling conceptualizations of proximate cause. As applied, the proximate cause analysis grounded in substantial factor appears to be yielding the same results with respect to liability as the proximate cause analysis grounded in foreseeability. It is the thesis of this Article that such a peace has, in fact, been brokered; whether approached from the means of substantial factor or result-within-the-risk, the end is the finding of common ground for the purpose of …

Beyond The Liability Wall: Strengthening Tort Remedies In International Environmental Law, Noah M. Sachs

Law Faculty Publications

Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( …

The Clean Water Act's Antidegradation Policy: Has It Been "Dumped"?, 42 J. Marshall L. Rev. 209 (2008), Katherine A. Zogas

UIC Law Review

No abstract provided.

Providing A Safe Harbor For Those Who Play By The Rules: The Case For A Strong Regulatory Compliance Defense, Richard C. Ausness, H. Lee Barfield, David A. King, Joshua R. Denton, Stephen J. Jasper

Law Faculty Scholarly Articles

On September 25, 2003, a fire broke out at the National Health Care (NHC) nursing home facility in Nashville, Tennessee, causing sixteen deaths and a number of injuries from smoke inhalation. Thirty-two victims subsequently filed suit against the nursing home, alleging that NHC was negligent for failing to install sprinklers in its facility. This claim was made notwithstanding the fact that applicable federal, state, and local safety regulations did not require the installation of sprinklers in this particular type of building, and notwithstanding that the NHC facility had been inspected by state fire inspectors just months before the fire and …

Impersonating The Legislature: State Attorneys General And Parens Patriae Product Litigation, Donald G. Gifford

Faculty Scholarship

The state attorney general has emerged during the past decade as a “super plaintiff” in state parens patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. Attorneys general sue on behalf of their states as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state …

Incidental Findings: A Common Law Approach, Stacey A. Tovino

Scholarly Works

Federal regulations governing human subjects research do not address key questions raised by incidental neuroimaging findings, including the scope of a researcher’s disclosure with respect to the possibility of incidental findings and the question whether a researcher has an affirmative legal duty to seek, detect, and report incidental findings. The scope of researcher duties may, however, be mapped with reference to common law doctrine, including fiduciary, tort, contract, and bailment theories of liability.

Guarantors Of Our Genes: Are Egg Donors Liable For Latent Genetic Disease, Suriya E.P. Jayanti

American University Law Review

Assisted reproductive technology ("ART"), including egg donation, is changing the topography of the American family. Heated debates and legislative battles over cloning and stem cell research reveal the complexity of the moral, scientific, and legal implications of emerging alternative reproductive methods. In fact, the field of reproductive medicine is the "Wild West" of the healthcare world where technological development is testing the boundaries of science and ethics. The legal and ethical issues intrinsic to the evolution of the egg donation industry are poised to become central topics of public debate as we, as a culture, reevaluate who and what constitutes …

Patients Without Borders: The Emerging Global Market For Patients And The Evolution Of Modern Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

This article addresses the unique legal, policy, and ethical questions that arise when patients travel to foreign jurisdictions for medical care. A growing number of patients are leaving the United States, and employers, insurers, and even government payors are beginning to explore whether they can reduce spending by utilizing hospitals and physicians in developing countries. Because this is a dramatic leap, it has generated countless media stories, and has drawn attention from the WHO, WTO, World Bank, and U.S. Senate - many of which believe so-called medical tourism may transform health care here and abroad.

Despite this attention, the market …