Torts Commons^™

What Happens If We Call Discrimination A Tort?, Anthony J. Sebok

Articles

No abstract provided.

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 …

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

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

The Original Source Of The Cause Of Action In Federal Courts: The Example Of The Alien Tort Statute, Anthony J. Bellia Jr., Bradford R. Clark

Journal Articles

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Do Black Lives Matter? Race As A Measure Of Injury In Tort Law., Alberto Bernabe

The Scholar: St. Mary's Law Review on Race and Social Justice

Courts should not recognize an injury for wrongful birth or wrongful life based on the race of the child. In Cramblett v. Midwest Sperm Bank, the petitioner contracted with a sperm bank to be artificially inseminated from an anonymous sperm donor. The petitioner selected a donor with blond hair and blue eyes. The sperm bank accidentally inseminated the petitioner with sperm from a different donor. Petitioner gave birth to a mixed-race baby girl. Two years after the birth, petitioner filed a lawsuit against the sperm bank alleging wrongful birth. The court dismissed her case, nonetheless the issue remains whether race …

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 …

Halliburton Ii: It All Depends On What Defendants Need To Show To Establish No Impact On Price, Merritt B. Fox

Faculty Scholarship

Rule 1Ob-5 private damages actions cannot proceed on a class basis unless the plaintiffs are entitled to the fraud-on-the-market presumption of reliance. In Halliburton II, the Supreme Court provides defendants with an opportunity, before class certification, to rebut the fraud-on-the-market presumption through evidece that the misstatement had no effect on the issuer's share price. It left unspecified, however, the standard by which the sufficiency of this evidence should be judged.

This Article explores the two most plausible approaches to setting this standard. One approach would be to impose the same statistical burden on defendants seeking to show there was …

Tort Reform And Jury Instructions, Charles W. Adams

Articles, Chapters in Books and Other Contributions to Scholarly Works

This article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil OUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Licensing Commercial Value: From Copyright To Trademarks And Back, Jane C. Ginsburg

Faculty Scholarship

Copyright and trademarks often overlap, particularly in visual characters. The same figure may qualify as a pictorial, graphic or sculptural work on the one hand, and as a registered (or at least used) trademark on the other. The two rights, though resting on distinct foundations, tend to be licensed together. Trademarks symbolize the goodwill of the producer, and are protected insofar as copying that symbol is likely to confuse consumers as to the source or approval of the goods or services in connection with which the mark is used. For famous marks, the dilution action grants a right against uses …

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.

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 …

Summary Of Sadler V. Pacificare Of Nevada, Inc., 130 Nev. Adv. Op. 98, Hayley Miller

Nevada Supreme Court Summaries

The Court determined (1) when stating a claim for a negligence action in which medical monitoring is sought as a remedy, a plaintiff may satisfy the injury requirement by alleging that additional medical monitoring is reasonably required beyond the standard recommendations.

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …

The European Directive On Products Liability: The Promise Of Progress?, Lawrence C. Mann, Peter R. Rodrigues

Georgia Journal of International & Comparative Law

No abstract provided.

Summary Of Nevada Ass’N. Servs. V. Eighth Jud. Dist., 130 Nev. Adv. Op. 94, Michael Valiente

Nevada Supreme Court Summaries

The voluntary payment doctrine provides an affirmative defense to a claim for the recovery of money that a plaintiff voluntarily paid. The duress/coercion exception to the voluntary payment doctrine requires the plaintiff show no reasonable alternative to payment existed. Additionally, the defense of property exception requires the plaintiff show an imminent risk of losing the property.

Torts, Phillip Comer Griffeth, Cash V. Morris

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2013 and May 31, 2014. During this survey period, the Georgia Supreme Court decided several cases of significance in the medical malpractice arena, and a seven-judge panel of the Georgia Court of Appeals was called upon to decide a slip-and-fall case. Some might argue that a few of these cases were victories for the plaintiff's bar. However, a close reading of the opinions reflects some well-reasoned and impressive legal arguments concerning the gross negligence and summary judgment standards applied by Georgia's appellate jurists. These opinions will be cited …

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products …