Torts Commons^™

Legal And Social Implications Of The 3d Printing Revolution, Alexander J. Mendoza

CMC Senior Theses

ABSTRACT

Emerging 3D printing technologies bring with it the potential to transform everyday consumers into manufacturers of every product imaginable. However, this impending wave of newfound technological capability is bound to crash against our present conventional system of laws and regulations. In this paper, the strengths and weaknesses of our current intellectual property framework are examined, and its ability to tackle the future 3D printing market is assessed. Particular attention is paid to our modern formation of copyright and patent law, including an analysis of the Digital Millennium Copyright Act (DMCA), the Repair-Reconstruction Doctrine and other substantial legal protocol. The …

Hitting A Home Run In Your Writing, David Spratt

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Torts Law: Blurred Elements: The New Nebulous Nature Of Foreseeability, The Confounding Quality Of Misfeasance, And The Minnesota Supreme Court's Decision—Doe 169 V. Brandon, Cara Mcdonald

William Mitchell Law Review

No abstract provided.

Can Dead Soldiers Revive A "Dead" Doctrine? An Argument For The Revitalization Of "Fighting Words" To Protect Grieving Families Post-Snyder V. Phelps, Kevin P. Donoughe

Cleveland State Law Review

This Note avers that speech of the Westboro Baptist Church, in the context of funeral pickets, can be construed as targeted personal attacks on grieving families which have the potential to incite—and indeed have incited—immediate breaches of the peace and violent rebuttals. In light of Snyder, and the inadequacy of time, place, and manner statutes as a protection for grieving families, this Note argues for the revitalization of the “fighting words” doctrine to encompass targeted, ad hominem attacks from organizations like the Westboro Baptist Church, thereby leaving this speech unprotected by the First Amendment and exposing the speakers to tort …

Medical Malpractice Claims In Mississippi: A Preliminary Analysis, Randall K. Johnson

Faculty Works

This essay explains where medical malpractice claims are filed in Mississippi. It initially does so by collecting state circuit court data, which have been recently released by the Administrative Office of Courts. The essay, then, computes summary statistics. Lastly, it examines these statistics: in order to find out which county had the most medical malpractice claims.

Is An Apartment A Nuisance?, Michael Lewyn

Scholarly Works

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.

Indiana Law Journal

No abstract provided.

Re-Examining Reasonableness: Negligence Liability In Adult Defendants With Cognitive Disabilities, Johnny Chriscoe, Lisa Lukasik

Scholarly Works

No abstract provided.

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

Copy And Paste: Transplanting International Hiv/Aids Model Laws Into African Countries, Maya Berinzon

Cardozo Journal of International and Comparative Law

There has been a recent increase in legislative and regulatory frameworks to govern HIV in Africa. This includes rules on when and how a health practitioner may disclose the HIV status of a patient to a spouse or sexual partner. In balancing the right to privacy against a doctor's duty of care, two international model laws have emerged, and have been wholly or partially copied by a number of African countries. This paper questions the usefulness of such model laws as legal transplants in national legislatures through an analysis of the regulations developed in thirty-eight African countries.

Navigating The Law Of Defense Counsel Ex Parte Interviews Of Treating Physicians, Joseph Regalia, V. Andrew Cass

Scholarly Works

This article explores the issue of defense counsel ex parte interviews with treating physicians, and proposes a resolution to standardize the practice that is equitable for all parties involved. Courts and legal scholars have commonly recognized that treating physicians in personal injury litigation are usually fact witnesses, albeit with special expertise, and allow plaintiffs unfettered access while defendants are relegated to a formal deposition which creates a fundamental imbalance in informational power. Moreover, there are significant arguments raised by the defense bar concerning efficiency and fairness. However, allowing defense counsel unlimited and unregulated access to treating physicians creates clear risks …

Tort As Democracy: Lessons From The Food Wars, Melissa Mortazavi

Faculty Articles

This Article develops alternative emerging theories regarding the function of tort in American civil society. Often, scholars and policymakers evaluate the tort system in terms of compensation, loss allocation, and risk management. This focus overlooks an important modern function of tort; in the context of the modern administrative state, tort is a vital player in the democratic deliberative process. Tort suits bring forth new ideas, force fact-finding, and increase communication amongst public and private institutional actors to develop sound and legitimate law and policy. Perhaps nowhere is this more obvious today than with the current boom of food litigation. Lawsuits …

Laissez Fair:The Case For Alternative Litigation Funding And Assignment Of Lawsuit Proceeds In Georgia, David T. Adams

Georgia Law Review

This Note discusses the value of alternative litigation funding (ALF) and the legal challenges affecting the ALF industry in Georgia. More specifically, it identifies a way to maximize ALF's benefits for plaintiffs with personal tort and employment discrimination claims. Tort victims who are rendered incapable of working, and employees who have lost jobs because of workplace discrimination or retaliation,face immediate financial burdens-they may be unable to afford food, housing, health care, transportation, and other necessities. This economic pressure often forces plaintiffs to settle quickly for less than the value of the harm inflicted. But ALF companies offer a workable solution …

The Role Of The Profit Imperative In Risk Management, Christopher French

Faculty Scholarship

Risks in the world abound. Every day there is a chance that each of us could be in a car accident. Or, one of us could be the victim of a tornado, flood or earthquake. Every day someone becomes deathly ill from an insidious disease. Our properties are in constant peril—one’s house could catch fire at any time or a tree could fall on it during a storm. Any one of these events could have devastating financial consequences, and they are just a few of the many risks that impact our daily lives. One of the principal ways we manage …

Is General Negligence The New Exception To The Florida Impact Rule?, Stephan Krejci

Florida A & M University Law Review

The impact rule is an ancient torts doctrine that precludes recovery for emotional distress unless the victim has been physically impacted by the tortfeasor and the emotional distress grew out of that physical impact. American courts widely adopted the impact rule and it persists in a handful of states to this day. Courts give several reasons for denying these negligent infliction of emotional distress (NIED) claims and these reasons fall into three broad categories: judicial efficiency, evidence concerns, and foreseeability. This paper proposes that Florida abrogate the impact rule and switch to using a general negligence approach for NIED claims. …

Examining The Impact Of Florida's Non-Economic Damage Cap On Elderly Populations, Andrew W. Dodds

CMC Senior Theses

In this paper, I use data from the Florida Closed Claims Database to investigate how Florida’s 2003 non-economic damage cap legislation impacted elderly malpractice claimants. More specifically, I measure whether or not non-economic damage caps adversely impact claimants in counties with high elderly densities. To measure the effect of Florida’s non-economic damage caps, I look at multiple metrics that measure both elderly claimants’ monetary gains and their access to the justice system after the reform is passed. I find mildly conclusive evidence that counties with higher elderly density, and assumedly more elderly claimants, are more likely to settle cases before …

Downstream Inundations Caused By Federal Flood Control Dam Operations In A Changing Climate: Getting The Proper Mix Of Takings, Tort, And Compensation, Robert Haskell Abrams, Jacqueline Bertelsen

Journal Publications

The 2012 United States Supreme Court case Arkansas Game & Fish Commission v. United States presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam's pattern of releases. The Court held that, "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection" and must, instead, be tested according to the Court's usual precedents governing temporary physical invasions and regulatory takings. The Federal Circuit held a …

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Faculty Scholarship

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

Reopening The Discussion Of The Loss Of Opportunity Doctrine In New Hampshire: A Look At Decisions Made In Light Of Current Times, Benjamin Lajoie

The University of New Hampshire Law Review

[Excerpt] “A close family member is diagnosed with late-stage breast cancer and now only has a fifteen percent chance of survival. She soon dies. Prior to her diagnosis, she had routine screenings every two years, but her previous doctor failed to detect the then existing cancer when she would have had a fifty percent chance of survival. In New Hampshire, from a legal standpoint, there has been no wrong.

This legal concept of negligent medical care that causes a patient to have a lower percentage of survival, or a less favorable outcome, is referred to as the “loss of opportunity” …

A No-Fault Remedy For Legal Malpractice?, Melissa Mortazavi

Faculty Articles

No abstract provided.

Preemption Of State Law Claims Involving Medical Devices: Why Increasing Liability For Manufacturers Is A Perilous But Pivotal Proposition, Neil M. Issar

Vanderbilt Journal of Entertainment & Technology Law

A circuit split regarding the preemptive scope of the Medical Device Amendments of 1976 (MDA) has widened over the past several years. The split encompasses both the circumstances under which the MDA implicitly preempts state law claims and the scope of the MDA's express preemption provision. Manufacturers of medical devices regulated by the Food and Drug Administration (FDA) enjoyed many years of favorable rulings on the issue of federal preemption and deference to the primacy of FDA jurisdiction on monitoring or enforcement actions. However, the circuit split is reshaping the litigation landscape, and injured plaintiffs may rely on certain Circuit …

Fixing Failure To Warn, Aaron D. Twerski, James A. Henderson Jr.

Cornell Law Faculty Publications

Design-defect and failure-to-warn cases share the same structural elements. Just as the defendant cannot defend a case premised on defective design without knowing the specifics of how the plaintiff would redesign the product to make it safer, so with regard to defective warnings the plaintiff cannot challenge the reasonableness of the defendant's marketing or whether better warnings would have saved the plaintiff from injury without knowing the specifics of the proposed warnings. No court would accept as adequate a statement by the plaintiff that she has a general idea for a reasonable alternative design (RAD), and no court should accept …

Adversarial Science, Sanne H. Knudsen

Articles

Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …

Identity Property: Protecting The New Ip In A Race-Relevant World, Philip Lee

Faculty Publications

(Excerpt)

This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law—i.e., through a process of socio-legal construction—in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development …

Encouraging Insurers To Regulate: The Role (If Any) For Tort Law, Kyle D. Logue

Law & Economics Working Papers

Insurance companies are financially responsible for a substantial portion of the losses associated with risky activities in the economy. The more insurers can lower the risks posed by their insureds, the more competitively they can price their policies, and the more customers they can attract. Thus, competition forces insurers to be private regulators of risk. To that end, insurers deploy a range of techniques to encourage their insureds to reduce the risks of their insured activities, from charging experience-rated premiums to giving special premium discounts to insureds who make specific behavioral changes designed to reduce risk. Somewhat paradoxically, however, tort …

The Judgment Fund: America's Deepest Pocket & Its Susceptibility To Executive Branch Misuse, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

Over the last thirty-five years, the United States government has paid out billions of dollars in settlements that have had no fiscal consequences for the agencies whose actions caused the claims. It has done so through the Judgment Fund, a relatively unknown permanent, indefinite appropriation originally created by Congress almost half a century ago to pay certain types of judgments entered against the United States.

Congress struggled for nearly two hundred years to find a way to exercise its Appropriations Clause authority over claims payments that did not drown its members in procedural detail. The article surveys that history. Through …

Gatsby And Tort, Robin West

Georgetown Law Faculty Publications and Other Works

The Great Gatsby is filled with potential tort claims, from drunken or reckless driving to assault and battery. In a pivotal passage Nick Carraway, the narrator of The Great Gatsby, judges Daisy and Tom as “careless people,” who “destroy creatures and leave others to clean up the mess.” The carelessness, negligence, and recklessness portrayed by Fitzgerald’s characters shows an absence of due care, long regarded as the foundation for tort law. Although there are torts, tortfeasors, and tortious behavior aplenty in The Great Gatsby, the novel is void of even a mention of tort law. Why?

The first part of …

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

School Of Hark Knocks - The Impact Of The Nfl Concussion Litigation, Elise Michael

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ending The Higher Education Sucker Sale: Toward An Expanded Theory Of Tort Liability For Recruitment Deception, Aaron N. Taylor

Utah Law Review

Admissions officers live a dual, often conflicted, existence. In one sense, they are counselors responsible for advising prospective students. In another sense, they are salespeople with obligations to meet enrollment goals. The pressures fostered by these roles sometimes prompt unscrupulous individuals to use misrepresentations and other forms of deception to induce students to enroll. Unfortunately, students who are induced to enroll based on recruitment deception are afforded few options for redress. The purpose of this Article is to conceptualize a tort-based solution to this utter inequity. The Article proposes a broadening of negligent misrepresentation to encompass a new tort—negligent educational …