Torts Commons^™

Head In The Clouds, Feet Firmly Grounded In Physical Proof: Emphasis On The Tangible In Actions Against Internet Search Engines And Aggregators, Briehan Moran

Student Works

No abstract provided.

The Role Of The Judge In Non-Class Settlement, Howard M. Erichson

Faculty Scholarship

This commentary argues that judges lack the authority, as a general matter, to approve or reject non-class settlements. While judges overseeing mass litigation can set the stage for settlement by instituting phased discovery, scheduling bellwether trials, and other methods, they should respect the line between facilitation of settlement and control over settlement terms. The paper was presented in response to Judge Alvin Hellerstein’s and his special masters' account of their handling of the September 11 clean-up litigation.

Civil Recourse Defended: A Reply To Posner, Calabresi, Rustad, Chamallas, And Robinette, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers to the difficult questions that courts face when applying Tort Law. We show with several examples, both old and new, that the glibness is all on their side. From duty to causation to punitive damages, from products liability to fraud to privacy, our scholarship has had …

The Fraud-On-The-Market Tort, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Fraud on the market is at the core of contemporary securities law, permitting 10b-5 class actions to proceed without direct proof of investor reliance on a misrepresentation. Yet the ambiguities of this idea have fractured the Supreme Court from its initial recognition of the doctrine in Basic v. Levinson to its recent decision in Amgen, Inc. v. Connecticut Retirement Plans and Trust Funds. Amidst divergent views of the coherence and advisability of liability for fraud on the market a fundamental question lurks: is a suit for damages that invokes the fraud-on-the-market theory a claim for common law deceit, such that …

The Impact Of Medical Liability Standards On Regional Variations In Physician Behavior: Evidence From The Adoption Of National-Standard Rules, Michael D. Frakes

Faculty Scholarship

I explore the association between regional variations in physician behavior and the geographical scope of malpractice standards of care. I estimate a 30–50 percent reduction in the gap between state and national utilization rates of various treatments and diagnostic procedures following the adoption of a rule requiring physicians to follow national, as opposed to local, standards. These findings suggest that standardization in malpractice law may lead to greater standardization in practices and, more generally, that physicians may indeed adhere to specific liability standards. In connection with the estimated convergence in practices, I observe no associated changes in patient health.

Disaggregating, Elizabeth Chamblee Burch

Scholarly Works

Commonality is a defining characteristic of mass-tort litigation. But mass-tort claimants typically do not share enough in common to warrant class certification. That is, commonality does not predominate. Yet, without class certification, judges cannot conclude these cases as a unit absent a private settlement.

This paradox prompts two questions. First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve them collectively absent a private settlement? This Article’s title suggests one answer: if minimal commonality continues to …

Tort Liability In The Age Of The Helicopter Parent, Elizabeth G. Porter

Articles

Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, Rodney K. Miller

Catholic University Law Review

No abstract provided.

Products Liability And Economic Activity: An Empirical Analysis Of Tort Reform's Impact On Businesses, Employment, And Production, Joanna M. Shepherd

Vanderbilt Law Review

For decades, advocates of tort reform have argued that expansive products liability stifles economic activity by imposing excessive and unpredictable liability costs on businesses. Although politicians aspiring to create jobs, attract businesses, and improve the economy have relied on this argument to enact hundreds of reforms, it has largely gone empirically untested. No longer. Using the most comprehensive dataset to date on products liability reforms and economic activity, I find that many reforms that restrict the scope of products liability improve economic conditions. Specifically, these reforms increase the number of businesses, employment, and production in the industries that face most …

Summary Of Dynamic Transit Co. V. Trans Pac. Ventures, Inc., 128 Nev. Adv. Op. 69, David H. Rigdon

Nevada Supreme Court Summaries

Appeal and cross-appeal from a District Court bench trial judgment in favor of Plaintiffs’, Trans Pacific Ventures and Trevor Small (hereinafter “Small”), state-law claims for conversion and fraud, and awarding Small a total of $52,500 in compensatory damages and $300,000 in punitive damages. Defendants, Dynamic Transit Company and Knight’s Company/Auto Transporters (hereinafter “Knights”), appeal contending that the District Court erred in denying their motion to dismiss pursuant to N.R.C.P. 12(b)(5) since the Carmack Amendment preempts each of Small’s state law claims. Alternatively, Knights argues that even if the Carmack Amendment does not apply, there is insufficient evidence to support the …

Summary Of Foster V. Costco Wholesale Corp., 128 Nev. Adv. Op. 71, Kelli Michelle Devaney

Nevada Supreme Court Summaries

Appeal from a district court summary judgment in a negligence action in which the court considered the landowner’s duty of care in regard to open and obvious dangerous conditions on the landowner’s property.

Autonomous Vehicle Liability—Application Of Common Carrier Liability, Dylan Levalley

Seattle University Law Review SUpra

No abstract provided.

Justice Holmes's Bad Man And The Depleted Purposes Of Punitive Damages, Jill Wieber Lens

Kentucky Law Journal

No abstract provided.

Through The Backdoor: Manipulating Assumption Of Risk And Contributory Negligence To Apply In Texas Nonsubscriber Causes Of Action., Lara Brock, Javier Espinoza

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

Texas’s nonsubscriber law precedence and interpretation directly conflict with the plain language and legislative intent of Texas Labor Code § 406.033. The purpose of § 406.033 is to protect injured workers and to encourage employers to subscribe to the state’s workers’ compensation system. Texas, however, allows employers to opt-out. Employers who elect to opt out of the workers’ compensation system are called “nonsubscribers.” By making this decision, nonsubscribers save on the cost of paying premiums for worker’s compensation, but potentially expose themselves to total liability against injured employees who can prove his or her employer breached one of their defined …

State Law, The Westfall Act, And The Nature Of The Bivens Question, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

In a number of recent cases touching to varying degrees on national security, different courts of appeals have applied a strong presumption against recognition of a Bivens cause of action. In each of these cases, the courts’ approach was based on the belief that the creation of a cause of action is a legislative function and that the courts would be usurping Congress’s role if they recognized a Bivens action without legislative authorization. Thus, faced with a scenario where they believed that the remedial possibilities were either "Bivens or nothing," these courts of appeals chose nothing.

The concerns that …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

UF Law Faculty Publications

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

La Interseccion De La Responsabilidad Extracontractual Y El Derecho Constitucional Y Los Derechos Humanos, George C. Christie

Faculty Scholarship

No abstract provided.

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Faculty Works

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a doctrinal level, …

Mass Torts And Universal Jurisdiction, Vivian Grosswald Curran

Articles

The technologies of the present era mean that injuries have become more massive in dimension. Mass torts affect greater numbers of people and larger geographical areas. Consequently, they can cross borders, affecting the populations of multiple countries. One of the two mechanisms in tort law for remedying mass catastrophes. restricted to cases involving jus cogens violations (namely, violations of human rights so grave as to be against international customary law, or the "law of nations"), is universal jurisdiction pursuant to the Alien Tort Statute (ATS).

Despite the distinctive official restriction of universal jurisdiction to the criminal law domain in civilian …