Torts Commons^™

The Illusion Of Autonomy In Women's Medical Decision-Making, Jamie Abrams

Scholarly Articles in Law Reviews & Journals

This article considers why there is not more conflict between women and their doctors in obstetric decision-making. While patients in every other medical context have complete autonomy to refuse treatment against medical advice, elect high-risk courses of action, and prioritize their own interests above any other decision-making metric, childbirth is viewed anomalously because of the duty to the fetus that the state and the doctor owe at birth. Many feminist scholars have analyzed the complex resolution of these conflicts when they arise, particularly when the state threatens to intervene to override the birthing woman’s autonomy. This article instead considers the …

Thin-Skull Plaintiffs, Socio-Cultural "Abnormalities" And The Dangers Of An Objective Test For Hypersensitivity, Eugene C. Lim

Dalhousie Law Journal

The extent to which "hypersensitivity" can serve as a legal basis for demanding additional compensation has always been a controversial issue in tort law. A key challenge facing courts lies in determining how the "thin-skull rule," traditionally related to physical conditions that predispose an individual to additional injury, can be applied to claims from "hypersensitive" plaintiffs citing personality-linked vulnerabilities of a religious, socio-cultural, or psychiatric nature. This article critically evaluates the viability of the "ordinary-fortitude test" adopted by the Supreme Court of Canada in Mustapha v. Culligan, and discusses the relative merits of a "multi-factorial test" in determining the admissibility …

Foul Play: Tennessee's Unequal Application Of Its Jock Tax Against Professional Athletes, Kirk Berger

Cardozo Public Law, Policy & Ethics Journal

The Framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus escape political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be …

Warning! Barracudas May Bite: Third Circuit Puts "Teeth" In The Ftca's Discretionary Function Exception Analysis, Lauren P. Deluca

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells

Scholarly Works

A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, …

State Of Israel, Courts Administration V. Themarker – Haaretz Newspaper, Ltd., Edna Arbel, Yoram Danziger, Neal Hendel, Elyakim Rubinstein, Salim Joubran, Esther Hayut, Uzi Vogelman

Translated Opinions

This is an appeal on an administrative judgment, in the framework of which appellant no. 1, the Courts Administration, was ordered to deliver information for the scrutiny of the respondents—a newspaper and a journalist employed by that newspaper—under the Freedom of Information Law, concerning the number of open cases that are being deliberated in the Supreme Court and in the district courts, indicating the amount of time that has elapsed since each case was opened, and the names of the judges hearing the cases. The State agreed to publish most of the information that was requested, segmented according to judge, …

Anonymous V. Orbach, Asher Grunis, Miriam Naor, Edna Arbel, Uzi Vogelman, Elyakim Rubinstein, Neal Hendel, Yoram Danziger, Isaac Amit, Salim Joubran

Translated Opinions

The translation of this case encompasses portions of President Grunis' majority opinion, Justice Hendel's concurrence, and Justice Rubinstein's dissent.

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: On Nov. 22, 2004, the television program “Uvda [“Fact”] with Ilana Dayan” (hereinafter: Uvda) aired an investigative report (hereinafter: the report) prepared and delivered by Dr. Ilana Dayan-Orbach, Respondent 1 (hereinafter: Dayan). The report was preceded by “promos” by Respondent 2, …

Summary Of Franchise Tax Board Of The State Of California V. Hyatt, 130 Nev. Adv. Op. 71, Stacy Newman, Jennifer Odell, Jaymes Orr, Patrick Phippen

Nevada Supreme Court Summaries

The Court (1) affirmed the intentional tort and bad faith exceptions to discretionary-function immunity under NRS 41.032; (2) recognized the common law tort of publicity in a false light; (3) adopted the sliding-scale approach to proving a claim of intentional infliction of emotional distress; (4) determined comity does not demand granting immunity from suit to foreign state government agencies if immunity would be available under that state’s laws, but not under Nevada law; and (5) determined comity does not require extending statutory caps to foreign state government agencies even if provided by law to Nevada government agencies.

Denying Reparation For Slave And Forced Laborers In World War Ii And The Ensuing Humanitarian Rights Implications: A Case Study Of The Icj’S Recent Decision In Jurisdictional Immunities Of The State (Ger. V. It.: Greece Intervening), Morgan L. Klinzing

Georgia Journal of International & Comparative Law

No abstract provided.

Prosser's Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort's Empire, Denis W. Stearns

Nevada Law Journal

No abstract provided.

How Reforming The Tort Of Negligent Hiring Can Enhance The Economic Activity Of A State, Be Good For Business And Protect The Victims Of Certain Crimes, Shawn D. Vance

Legislation and Policy Brief

This article will focus on reforming the tort of negligent hiring to limit the liability of employers while also ensuring the compensation of certain victims when the employer fails to meet the requirements of the reformed tort. While the tort is currently recognized by most states, the states that have recognized the tort have different standards for liability and little clarity is provided to employers on how to avoid liability. By creating certainty in the marketplace through a reformed negligent hiring tort, states can encourage business activity from civic-minded businesses while holding businesses, which fail to exhibit good civic behavior, …

Is Statutory Immunity For Spaceflight Operators Good Enough?, Maria-Vittoria “Giugi” Carminati

Legislation and Policy Brief

Over the past decade, the commercial spaceflight industry has seen a growth never witnessed before. The likes of Virgin Galactic and Xcor are promising suborbital flights to anyone willing to pay the price. Golden Spike is selling tickets to the moon. And SpaceX was re-supplying the ISS as a commercial provider as of 2012. States have responded to this growth by trying to make themselves more attractive to these commercial providers of space services (hereinafter generally referred to as “spaceflight entities”). Attractiveness has become synonymous with overt efforts to decrease spaceflight entities’ liability from injuries to their spaceflight participants (“SFPs”). …

Who Let The Dogs Out: Should A Stadium Owner Be Held Liable For Injuries Sustained From A Mascot's Errant Hot Dog Toss?, Joshua D. Winneker, David Gargone, Sam C. Ehrlich

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

Summary Of Morrison V. Health Plan Of Nev., 130 Nev. Adv. Op. 55, Sean Daly

Nevada Supreme Court Summaries

The Court determined whether a Medicare beneficiary's state common law negligence claim against his private health insurance company, through which he is receiving his Medicare benefits, is preempted by the federal Medicare Act.

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen Marks

Pace Law Review

In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …

Resisting Putting The Cat In The Bag: The Case Against Extending Minnesota's Dog Attack Strict Liability Statute To Cats, Julianna Passe

Hamline Law Review

abstract

Impaired Physicians And The Scope Of Informed Consent: Balancing Patient Safety With Physician Privacy, Sarah Haston

Florida State University Law Review

No abstract provided.

Health Law—A Call For The Arkansas General Assembly To Modernize The Standard Of Care Requirement In Medical Malpractice Cases. Broussard V. St. Edward Mercy Health System, Inc., 2012 Ark. 14, 386 S.W.3d 385., Jarred Kibbey

University of Arkansas at Little Rock Law Review

No abstract provided.

I Thought He Had A Gun: Amending New York's Justification Statute To Prevent Police Officers From Mistakenly Shooting Unarmed Black Men, Toussaint Cummings

Cardozo Public Law, Policy & Ethics Journal

The note advocates for reforming the legal standards governing police use of deadly force, particularly in cases involving unarmed Black men. It argues that racial stereotypes and implicit biases significantly influence officers' decisions to shoot, leading to unjustified shootings. The author proposes eliminating the subjective component of the justification defense, focusing instead on objective reasonableness and incorporating social science research to address these biases. The reforms aim to hold police accountable and promote justice by valuing Black lives equally.