Torts Commons^™

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

Akron Law Review

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory damages and takes the position that make-whole recovery is an unnecessary consequence of liability and does not necessarily achieve just results...I propose that civil damages should fit the wrong.6 Compensatory damages should abandon the make-whole premise and be measured by three factors: the degree of the wrongfulness of the tort, the severity of the harm, and the extent to which the risky conduct was directed at the plaintiff—which I call connectedness.

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Akron Law Review

Part II of this essay examines the need to identify, measure, and compare the interests at stake in any legal contest with rigorous consistency. It also notes the corollary principle of proportionality as a limiting principle that guards against foolish or destructive consistency. Part III explores the natural hierarchy among legal norms and the weight accorded various types of interests that deserve legal protection. Part IV considers the system of measurement presented by the current tort reform movement, exploring the failure of many proponents of tort reform to account for or accommodate the tradition of a more generous and protective …

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Akron Law Review

In this article, I examine two procedural questions arising from the use of statutory caps. First, how should a statutory cap affect judicial review of awards for possible excessiveness? Second, when a legislature has imposed a total cap on a combination of different types of damages (such as on the total of punitive and compensatory damages or on the total of economic and noneconomic damages), how should courts allocate multiple awards to conform to the cap?...With respect to multiple awards that exceed a total cap on different types of damages, I suggest that the appropriate way to conform multiple awards …

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Akron Law Review

This article identifies another counterbalancing power that checks the legislative ability to restrict tort remedies through tort reform: the due process clauses of both state and federal constitutions. Pursuing this uncharted line of inquiry, this article argues that due process guarantees provide a restraint on the tort remedy stripping provisions that deny plaintiffs their fundamental right to a meaningful remedy...Pulling together the disparate strands of legal rules in existing case law, the article develops a cohesive theory of due process protection for the right to an adequate remedy. State court decisions invalidating tort reform remedy restrictions appear analytically scattered and …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

A Survey And Some Commentary On Federal "Tort Reform", Michael P. Allen

Akron Law Review

In Part I, I survey the potential types of federal tort reform. While many of these types of reform measures could be adopted at the state level as well as nationally, some important ones could not. It is on those uniquely federal measures that I focus much of my attention. This section also considers the interrelationships of the branches of government as well as the political and legal advantages and disadvantages of various types of reform. In Part II, I discuss some of the legislation adopted in the wake of the September 11th terrorist attacks. That legislation provides a useful …

Introduction: Fourth Remedies Discussion Forum, David F. Partlett, Russell L. Weaver

Akron Law Review

Introduction to the articles in this section...Three of the articles provide an overview on the subject...The next two articles suggest the desirability of a historical approach to tort reform...A couple of articles focus on the problem of statutory damage and appeal bond caps...A couple of articles question the efficacy and legitimacy of prior tort reforms, both legislative and judicial...The last article in this section, Professor Michael Kelly’s What Makes the Collateral Source Rule Different?, analyzes Paul H. Rubin and Joanna M. Sheperd’s working paper on a “correlation between tort reforms and the rate of fatal accidents in the states which …

Can't Settle, Can't Sue: How Congress Stole Tort Remedies From Medicare Beneficiaries, Rick Swedloff

Akron Law Review

In this article, I show that, as amended, the MSP will likely have unforeseen consequences to the tort system. I start by reviewing the history of Medicare and the forces that led Congress to enact and amend the MSP. With illustration from the classic economic model of litigation, I then show that, not surprisingly, the MSP – as written – makes it more difficult for Medicare beneficiaries to bring and settle individual tort claims. What may be less obvious is that this amendment may have a profound impact in the area of mass tort litigation. If individual parties to a …

The Medical Liability Exemption: A Path To Affordable Pharmaceuticals, Carrie E. Rosato

Florida State University Law Review

Patent monopolies are tolerated because we believe they promote progress that benefits society. What should be done when these monopolies actually increase human suffering? Drug prices in America are fifty to eighty percent higher than the rest of the world, meaning many cannot afford drugs that will improve or even save their lives. When striking a balance between the interests of the patent holder and that of the public, it is important to bear in mind that the rewards granted to patentees are secondary to the public benefit derived from their labors. The ideal solution would come from Congress creating …

Dualism And Doctrine, Alex Stein, Dov Fox

Faculty Scholarship

No abstract provided.

Broken Bats And Broken Bones: Holding Stadium Owners Accountable For Alcohol-Fueled Fan-On-Fan Violence, Bridget Fitzpatrick

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Costs Of Self-Driving Cars: Reconciling Freedom And Privacy With Tort Liability In Autonomous Vehichle Registration, Jack Boeglin

Faculty Publications

Nearly all of the literature on self-driving cars explores either their impact on social values, like freedom and privacy, or the questions they pose for legal liability.  These lines of inquiry have developed largely in isolation, with little effort to examine how they might intersect and inform each other.  This Article advances an integrated approach: regulators should consider freedom, privacy, and liability as interlocking pieces-not independent elements-of the puzzle of self-driving car regulation.

Explorations into the laws of agency and product liability demonstrate that an actor's post-sale control of and access to an autonomous vehicle may determine that actor's liability …

Exxon Shipping Co. V. Baker: Why The Supreme Court Missed The Boat On Punitive Damages, Maria C. Klutinoty

Akron Law Review

This Note will touch upon the numerous constitutional challenges the doctrine of punitive damages has faced, and will discuss noteworthy Supreme Court cases preceding Exxon Shipping Co. v. Baker at length, including BMW of North America, Inc. v. Gore, 5 as well as State Farm Mutual Automobile Insurance Co. v. Campbell. 6 This Note argues against the imposition of a strict one-to-one maximum ratio of punitiveto-compensatory damages. In light of the varying application of Exxon outside of the maritime context, such an imposition defeats the purpose of punitive damages by diluting their potential for deterrence, and it needlessly complicates the …

Six Summary Judgment Safeguards, Edward Brunet

Akron Law Review

This article sets forth a more optimistic assessment of the current status of summary judgment. Numerous potential safeguards deter improper grants of summary judgment motions and serve to temper trial judges who are prone to rule favorably on summary judgment requests. While some of the safeguards act more as ineffectual clichés or slogans, others provide a set of significant deterrents to overly adventuresome treatment of Rule 56 motions. The goal of this article is to critique six possible summary judgment safeguards and, in so doing, to determine whether the state of contemporary summary judgment is as bleak as leading critics …

The Modest Effect Of Minneci V. Pollard On Inmate Litigants, Alexander Volokh

Akron Law Review

This Symposium, on the recent Supreme Court Term’s criminal procedure jurisprudence, illustrates these complexities. Of the five “cases” discussed here, three come out in a “liberal” direction and two come out in a “conservative” direction. Nor do the results merely stem from Justice Kennedy’s swing vote (though he was in the majority in all of these cases); one of the “liberal” cases was decided by a majority of seven Justices, and one of the “conservative” ones was decided by a majority of eight. Looking at these cases together is a good way of reminding us to be wary of simplistic …

Unconventional Responses To Unique Catastrophes, Kenneth R. Feinberg

Akron Law Review

Mass disasters sometimes require creative remedies. The tort system may not provide the best means of compensation in unusual situations like the Agent Orange chemical exposure litigation, the Virginia Tech shootings,the attacks of September 11th (“9/11”), and the BP oil spill. Executive compensation after the financial meltdown may also require new, innovative approaches. From my work mediating and administering these cases over the last twenty-five years, I have concluded that such alternative compensation systems are—and should be—rare.

Using It For All It's Wuerth: A Critical Analysis Of National Union Fire Insurance Company Of Pittsburgh V. Wuerth As Applied To Medical Malpractice In Ohio, Christy L. Wesig

Akron Law Review

This essay discusses the application of this new limitation to the field of medical malpractice, the divergent results reached by Ohio’s appellate courts in the medical negligence and malpractice context since Wuerth, and the various treatments by other jurisdictions. This essay argues that the holding in Wuerth narrowly applies only to law firms, and that applying it to medical malpractice results in a reversal of the settled Ohio law and injustice for those injured by the negligence of medical professionals. Part II examines the history of hospital liability and traces the changes in vicarious liability up to the Wuerth decision. …

Bellwether Trial Selection In Multi-District Litigation: Empirical Evidence In Favor Of Random Selection, Loren H. Brown, Matthew A. Holian, Arindam Ghosh

Akron Law Review

For decades, courts overseeing mass tort litigation have struggled with how to identify the right plaintiffs for early trials. These initial trials, often called “bellwether” trials, are intended to help the parties evaluate the merits of other cases in the same litigation. But a successful bellwether process depends heavily on the method by which the trials are selected. A process that all litigants regard as fair and that results in the selection of plaintiffs who are representative of the claims of other plaintiffs can help to facilitate the resolution of an entire mass tort docket, whereas a process that is …

Judicial Deregulation Of Consumer Markets, Max N. Helveston

Cardozo Law Review

The dangers posed by insufficiently regulated consumer markets are both real and monumental. While the rights of consumers expanded drastically in the mid- to late twentieth century, these protections have weakened in the new millennium. One of the forces driving this change has been the judiciary, where an anti-consumer jurisprudence has taken root. This is surprising, given the courts' history of defending individuals' commercial rights and combating unfair market practices.

Despite the significant ramifications that the removal of consumer protections has for every individual, the evolution of anti-consumerism in the courts has received scarce attention from the academy. This Article …

From Calder To Walden And Beyond: The Proper Application Of The “Effects Test” In Personal Jurisdiction Cases, Lee Goldman

San Diego Law Review

...This Article argues that the critical element of Calder’s three-part test is the finding of intentional conduct. It should not be enough that the defendant intended to engage in the conduct that is later found to be tortious. Rather, the defendant’s intentional conduct must have been willfully wrongful. This should require some element of bad faith on the part of the defendant. Where willful misconduct affects a known resident of the forum, the defendant can reasonably foresee being haled into the forum and jurisdiction would not be unfair. The defendant should therefore be found to have expressly aimed its conduct …