Torts Commons^™

Website Proprietorship And Online Harassment, Nancy Kim

Faculty Scholarship

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content.

Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon …

The Graying Of The American Manufacturing Economy: Gray Markets, Parallel Importation, And A Tort Law Approach, Joseph Karl Grant

Journal Publications

This Article examines the history of the gray market in the United States through an analysis of both the domestic legislative framework and judicial treatment of gray market goods, primarily under trademark and copyright law. Part I of this Article provides a general introduction into the structural factors that cause parallel importation. Part II begins a discussion of trademarked goods by looking at the purposes of trademark law. Part III starts by discussing the relevant doctrines and provisions of the Copyright Act of 1976, which frame the gray market discussion. Part III concludes by examining the current debate and the …

Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead

Articles

Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory and …

Responsibility And The Negligence Standard, Joseph Raz

Faculty Scholarship

The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.

Yada, Yada, Yada: Seinfeld, The Law And Mediation, Paul Devendorf

Cardozo Journal of Conflict Resolution

This Note will first explore the popularity of Seinfeld and discuss the influence of Seinfeld on legal culture. Part III details cultivation theory and explores the possible influences Seinfeld may have in shaping its viewers' impressions of formal law. Specific instances in-which Seinfeld has ridiculed formal legal practices and offered social criticisms of the legal profession are analyzed in Part IV. Part V describes a specific episode of Seinfeld and illustrates the consequences of parties' refusal to reach mutually satisfactory resolutions, the need for mediation to resolve highly contentious disputes, and the inadequacy of the legal system to provide an …

Coping With Combat Claims: An Analysis Of The Foreign Claims Act's Combat Exclusion, Jordan Walerstein

Cardozo Journal of Conflict Resolution

The purpose of this Note is to show that, although the FCA has positively impacted U.S. military operations, the so-called "combat exclusion" severely hampers its effectiveness. Therefore, Congress should eliminate the distinction between combat and noncombat claims and adopt a unified, permanent claims system to adjudicate all claims made by civilians against U.S. military forces operating overseas. Part II of this Note explores the origins of the "combat exclusion" in international law, and Part III traces the history of civilian compensation through World War I and World War II. Part IV surveys U.S. military use of the FCA and ad …

Health Law—Negligent Credentialing And You: What Happens When Hospitals Fail To Monitor Physicians, Whitney Foster

University of Arkansas at Little Rock Law Review

No abstract provided.

Overlooking Tort Claimants' Best Interests: Non-Debtor Releases In Asbestos Bankruptcies , Joshua M. Silverstein

Law Faculty Scholarship

The asbestos crisis has spawned the development of extraordinary new remedies. One of the most dramatic and controversial is known as a "non-debtor release," a bankruptcy order extinguishing claims against a party who has not itself filed for bankruptcy. Also known as a "third-party release," this form of relief first found acceptance in early asbestos insolvencies. Since that time, Congress has passed a statute—§ 524(g) of the Bankruptcy Code—that expressly authorizes non-debtor releases in asbestos reorganizations. Powerful remedies are subject to abuse, and third-party releases are no exception. In this article, I argue that bankruptcy courts and litigants have overlooked …

The Status Of Trespassers On Land, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

Scholarly Articles in Law Reviews & Journals

This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

Fellow-Feeling And Gender In The Law Of Personal Injury, Anita Bernstein

Faculty Scholarship

No abstract provided.

Negligence Per Se And Res Ipsa Loquitur: Kissing Cousins, Aaron D. Twerski

Faculty Scholarship

No abstract provided.

Emerging As Heroes After The Devastation Of Natural Disaster: Can Women And Children Utilize Public Nuisance Claims To Catalyze Regulation Of Greenhouse Gas Emissions By U.S. Corporations?, Tressie K. Kamp

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Working Group On Chapter 4 Of The Proposed Restatement Of Employment Law: The Tort Of Wrongful Discipline In Violation Of Public Policy, Pauline Kim, Joseph R. Grodin, Paul M. Secunda, Richard A. Bales, Catherine Fisk, Roberto L. Corrada

Scholarship@WashULaw

The purpose of this commentary on Chapter 4 of the Proposed ALI Restatement of Employment Law, concerning the tort of wrongful discipline in violation of public policy, is to closely evaluate the current draft in light of the appropriate purposes for a Restatement. Although some value exists in merely stating the consensus respecting these rules, the mission of the ALI extends beyond that, to better adapt the law to social needs and secure the better administration of justice. Our principal problem with the current Restatement draft is that it does not adequately recognize the dynamic nature of this area of …

Hot Pursuit: The Media's Liability For Intentional Infliction Of Emotional Distress Through Newsgathering, Heather Berger

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Alternative Dispute Resolution In Small Consensual Litigation: Too Much Of A Good Thing?, Mark S. Simms

Cardozo Journal of Conflict Resolution

The evolution of equity in tort has brought about the use of alternative methods of dispute resolution in reaching settlements in mass tort cases: "Indeed, equity is a progressive force in the law. When formal adjudication cannot provide a plain, adequate, and complete remedy, the system of ADR should be flexible enough to deliver individualized justice." It appears, however, that the use of ADR is not always a prudent exercise of the court's power, nor is it always conducive to individual justice. This Note examines the Gray case, in which the court appointed a special master, thereby assigning one man …

Super Bowl Hero To Bank Account Zero, Scott Hollander

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Estimating The Effect Of Damages Caps In Medical Malpractice Cases: Evidence From Texas, David A. Hyman, Bernard Black, Charles Silver, William M. Sage

Faculty Scholarship

Using claim-level data, we estimate the effect of Texas's 2003 cap on non-economic damages on jury verdicts, post-verdict payouts, and settlements in medical malpractice cases closed during 1988–2004. For pro-plaintiff jury verdicts, the cap affects 47-percent of verdicts and reduces mean allowed non-economic damages, mean allowed verdict, and mean total payout by 73-percent, 38-percent, and 27-percent, respectively. In total, the non-econ cap reduces adjusted verdicts by $156M, but predicted payouts by only $60M. The impact on payouts is smaller because a substantial portion of the above-cap damage awards were not being paid to begin with. In cases settled without trial, …

Roscoe Pound, Melvin Belli, And The Personal-Injury Bar: The Tale Of An Odd Coupling, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

In the fourth chapter of Patriots and Cosmopolitans: Hidden Histories of American Law, legal historian John Fabian Witt tells the story of a collaboration between storied scholar Roscoe Pound and trial virtuoso Melvin M. Belli, which he calls "among the most startling and yet unremarked-upon relationships in the annals of American law." Witt argues that it both shaped and energized the efforts of personal-injury lawyers to oppose proposals that would shift to the administrative branch of government responsibility for compensating auto-accident victims. Entitled "The King and the Dean," in reference to the media's coronation of Belli as the "King of …

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Working Without A Net: The Third Circuit Juggles Skepticism And Deference Inside The Ring Of Products Liability Experts After The Daubert Trilogy In Pineda V. Ford Motor Co. & (And) Calhoun V. Yamaha Corp., Jennifer E. Burke

Villanova Law Review (1956 - )

No abstract provided.

The Role And Future Of Customary Tort Law In Ghana: A Cross-Cultural Perspective, Julie A. Davies, Dominic N. Dagbanja

McGeorge School of Law Scholarly Articles

No abstract provided.

Litigating Groups, Elizabeth Chamblee Burch

Scholarly Works

Large-scale litigation, such as the Vioxx, Zyprexa, and asbestos cases, breeds conflict. Conflicts arise between attorneys and their clients (agency problems), plaintiffs and other plaintiffs (group problems), and plaintiffs' attorneys and other plaintiffs' attorneys (competition problems). Although these cases cannot be certified as class actions, they still proceed en masse to achieve economies of scale and present a credible threat to defendants. Assuming that coordinating and consolidating large-scale litigation is systemically desirable, this Article explores a new approach to removing the group and agency problems that increase aggregate litigation's costs and undermine its normative goals such as fairness, compensation, and …

Scott V. Harris And The Role Of The Jury In Constitutional Litigation, Michael Wells

Scholarly Works

Suits brought under 42 U.S.C. section 1983 to recover damages for excessive force by the police bear some resemblance to common law tort litigation, since the key Fourth Amendment issue is whether the force was 'unreasonable.' In ordinary negligence law the jury typically decides whether an actor has exercised reasonable care, even when there is no dispute as to the facts. In section 1983 litigation the federal courts are badly split on the allocation of decision making between judge and jury, sometimes even within a particular circuit. The Supreme Court recently faced the judge-jury issue in Scott v. Harris, where …

Juries And Medical Malpractice Claims: Empirical Facts Versus Myths, Neil Vidmar

Faculty Scholarship

Juries in medical malpractice trials are viewed as incompetent, anti-doctor, irresponsible in awarding damages to patients, and casting a threatening shadow over the settlement process. Several decades of systematic empirical research yields little support for these claims. This article summarizes those findings. Doctors win about three cases of four that go to trial. Juries are skeptical about inflated claims. Jury verdicts on negligence are roughly similar to assessments made by medical experts and judges. Damage awards tend to correlate positively with the severity of injury. There are defensible reasons for large damage awards. Moreover, the largest awards are typically settled …

Procedural Justice In Nonclass Aggregation, Elizabeth Chamblee Burch

Scholarly Works

Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the …

Tort Duties Of Landowners: A Positive Theory, Keith N. Hylton

Faculty Scholarship

One of the most controversial areas of modern tort law is that of the duty of landowners toward people who visit their land. The common law divided land visitors into three types: invitees, licensees, and trespassers. The highest duty of care was owed to the invitee and the lowest to the trespasser. The distinctions led courts to hand down harsh decisions and to draw formal lines between the categories that seemed to defy common sense at times. This paper explains the incentive-based function of the classical landowner duties. I will argue that the classical duties served useful regulatory functions. The …

Federalization Snowballs: The Need For National Action In Medical Malpractice Reform, Abigail Moncrieff

Faculty Scholarship

Because tort law generally and healthcare regulation specifically are traditional state functions and because medical, legal, and insurance practices are highly localized, legal scholars have long believed that medical malpractice falls within the states' exclusive jurisdiction and sovereignty. Indeed, this view is so widely held that modern legal scholarship takes it for granted. Articles on general federalism issues use medical malpractice as an easy example of a policy in which federal intervention lacks functional justification, and articles that focus on federalization of other tort reforms use medical malpractice as an easy foil, pointing out that the uniformity interest that justifies …