Torts Commons^™

Kiobel V. Royal Dutch Petroleum: The Alien Tort Statute's Jurisdictional Universalism In Retreat, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

Kiobel v. Royal Dutch Petroleum (Shell), a long-running Alien Tort Statute (ATS) case brought by Nigerian plaintiffs alleging aiding and abetting liability against various multinational oil companies for human rights violations of the Nigerian government in the 1990s, including a non-US Shell corporation, first came before the US Supreme Court in the 2011-2012 term, following a sweeping Second Circuit holding that there was no "liability for corporations" under the ATS. In oral argument, however, several Justices asked a different question from corporate liability: noting that the case involved foreign plaintiffs, foreign defendants, and conduct taking place entirely on foreign sovereign …

'No Body Left Behind': Re-Orienting School-Based Childhood Obesity Interventions, Lindsay Wiley

Scholarly Articles in Law Reviews & Journals

Although there are now laws on the books in virtually every jurisdiction aimed at addressing childhood obesity in K-12 schools, these efforts are inadequate and may even be misguided in important ways. Efforts aimed at health promotion - through healthier eating and increased physical activity - remain woefully underfunded even as they proliferate at every level of government. It is one thing to enact a requirement that all schools offer a minimum number of minutes of physical education each week or that school lunches include more fruits and vegetables. But it is quite another to make the budgetary commitment to …

Using Problems To Teach Quantitative Damages In A First Year Torts Class, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

This article suggests an exercise that demonstrates to beginning law students the complexity of calculating damages in personal injury litigation. It shows the straight-forward method of calculating the lost future earnings of an injured working adult, and the greater complexity of calculating the lost future earnings of an injured child. It explains how to use life expectancy tables and work-life expectancy tables to calculate lost future income. It shows how to use future value tables to compute the amount of money needed today to replace a flow of income for a set period in the future. It provides examples of …

Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda Nicola

Scholarly Articles in Law Reviews & Journals

Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …

Review Of Corrective Justice, By E. Weinrib, Scott Hershovitz

Reviews

I once heard it said of a famous philosopher of law that he never allowed his philosophy to be polluted by law. No one will ever say that about Ernie Weinrib. His latest book - Corrective Justice - is exceptional precisely because Weinrib is deeply informed about legal doctrine. Of course, he also has formidable philosophical skill, and in bringing that to bear on doctrine, he dismantles any thought that corrective justice is too abstract a concept to shed light on the practical problems that courts face. Along the way, he also demol­ ishes the instrumentalism that has recently dominated …

When Are Damages Tax Free?: The Elusive Meaning Of “Physical Injury”, Ronald H. Jensen

Elisabeth Haub School of Law Faculty Publications

Part I of this article traces the evolution in the tax treatment of litigation damages from 1918 through the enactment of the 1996 Amendments and reviews the various rationales that have been offered for such treatment. In Part II, I set forth a number of hypothetical cases illustrating some of the issues created by the 1996 Amendments. In Parts III through Part VI, I set forth my analyses of these issues. Finally, In Part VII, I critique the 1996 Amendments and make a proposal that would eliminate much of the uncertainty and inequity that the 1996 Amendments created while satisfying …

The Economics And Perplexing Utah Law Of Prejudgment Interest, Mark A. Glick, James R. Kearl, Cory D. Sinclair

Utah OnLaw: The Utah Law Review Online Supplement

Legal rules are often designed to provide different incentives to plaintiffs and defendants. With regard to prejudgment interest, however, it is not clear why there should be a bias in either direction. Absent a convincing argument for leaning toward one party or the other, we conclude that as a normative matter, the ideal rule for prejudgment interest should be neutral with regard to delay: plaintiffs are compensated fully for delay and defendants pay the market rate for the benefits they implicitly derive from holding money that belongs to the plaintiff. This simple “neutrality rule” implies, of course, that all claims …

Survey Of Damages Measures Recognized In Negligence Cases Involving Animals, Alison M. Rowe

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Where Is Concussion Litigation Headed? The Impact Of Riddell, Inc. V. Schutt Sports, Inc. On Brain Injury Law, Cailyn Reilly

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Locality Rule Lives! Why? Using Modern Medicine To Eradicate An “Unhealthy” Law, 61 Drake L. Rev. 321 (2013), Marc Ginsberg

UIC Law Open Access Faculty Scholarship

The "locality rule" places a geographical dimension on the professional standard of care in medical negligence litigation. It requires the measurement of a physician's conduct by a standard focusing on the geographical location of the treatment provided. This Article traces the origin of the locality rule, discusses its related practical problems, focuses on the states in which it exists, suggests that the rule is archaic, and explains how modern medicine (undergraduate medical education, graduate medical education, state medical licensure, board certification, continuing medical education and practice guidelines) is well positioned to eradicate it.

The Domagala Dilemma-Domagala V. Rolland, Michael K. Steenson

Faculty Scholarship

In Domagala v. Rolland, the Minnesota Supreme Court granted review in a personal injury case that was dominated by duty and special relationship issues, even though the parties agreed that there was no special relationship between them. The case, straddling the misfeasance/nonfeasance line, was complicated by the defense theory (that the lack of a special relationship meant that the defendant owed no duty to protect or warn the plaintiff), and the plaintiff’s theory (that the defendant owed a duty of reasonable care to the plaintiff because he acted affirmatively, even if the risk to the plaintiff did not become apparent …

Taxing Anxiety, Morgan Holcomb

Faculty Scholarship

In this article, I argue for a statutory change to the disparity in the taxation of damages. I submit that nearly all damages, including damages received on account of physical injury, ought to be taxable, and that juries must be apprised of tax consequences so that they can make proper adjustments to take account of these tax consequences. I will refer to this as the full inclusion proposal with jury awareness - for ease, the full inclusion proposal.

My proposed change is the more sound solution for several reasons. Full inclusion creates certainty and avoids wasteful tax gamesmanship. Furthermore, assuming …

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.

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.

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

Faculty Articles

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 …

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

Faculty Scholarship

No abstract provided.

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.

Florida's Motor Vehicle Crashworthiness Enhanced Injury Doctrine: "Wanted Dead Or . . .", Larry M. Roth

Barry Law Review

No abstract provided.

Free Agents: Should Crowdsourcing Lead To Agency Liability For Firms?, Erin R. Frankrone

Vanderbilt Journal of Entertainment & Technology Law

Crowdsourcing has emerged as a new production paradigm through which firms outsource traditional employee tasks to an undefined and generally large network of people, the "crowd," in the form of an open call. The relationships between the crowd and the firm vary across different crowdsourcing models and do not represent, either in fact or in theory, the employment or contractor relationships with which the law is familiar. Therefore, the law and the courts are ill-equipped to answer the questions of whether and how liability should attach to firms for the crowd's harmful conduct toward third parties. Agency law is the …

Section 7433'S Statute Of Limitations: How Courts Have Wrongly Turned A Taxpayer's Exclusive Sword Into The Irs's Shield Against Damages, Diana Leyden

Faculty Articles and Papers

Over twenty years ago, Congress took the extraordinary step of authorizing taxpayers to sue the Internal Revenue Service (“IRS”) for damages if the IRS engaged in “unauthorized collection action” when trying to collect a federal tax debt. For many years the IRS has generally been immune from any private action by three laws. Thus, fashioning a private cause of action against the IRS for damages was an extraordinary act. Congress expressly authorized taxpayers to bring a private cause of action against the United States for economic damages caused by “unauthorized collection.” Codified as section 7433 of the Internal Revenue Code, …