Torts Commons^™

Oh Lord Won't You Buy Me A Mercedes Benz: A Comparison Of State Wrongful Conviction Compensation Statutes., Donna Mckneelen

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

All states should pass compensation statutes that provide financial assistance to exonerees. Following wrongful incarceration, exonerees may suffer from post-traumatic stress and may need assistance readjusting to everyday life. Many exonerees may be be ineligible for social benefits and may lack a support system. The exoneree may be alienated because family and friends may still believe that the exoneree actually committed the crime. Furthermore, exonerees may struggle to obtain employment because they lack the current educational and job training skills required for most jobs. Additionally, exonerees may have pre-existing health problems that were exacerbated while incarcerated. An exoneree’s health problems …

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, …

Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown

Cleveland State Law Review

The Supreme Court’s recent decisions concerning preclusion doctrine stress the “deep-rooted historic tradition that everyone should have his own day in court.” Nonetheless, “properly conducted class actions” are a recognized exception to this general rule because such actions ensure that nonparties are “adequately represented by someone with the same interests who was a party to the suit.” Mass torts, however, frequently involve numerous plaintiffs with diverse legal and factual issues that are not “sufficiently cohesive to warrant adjudication by representation.” Thus, it may be reasonably feared that the Court’s firm insistence on preserving individual autonomy will deny plaintiffs the economies …

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 …

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.

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 …

Roadblocks To Remedies: Recently Developed Barriers To Relief For Aliens Injured By U.S. Officials, Contrary To The Founders' Intent, Gwynne L. Skinner

University of Richmond Law Review

No abstract provided.

No Implied Effect: The ‘Safe’ Fcc Cell Phone Radiation Standard And Tort Immunity By Implied Conflict Preemption, Sean M. Sherman

Richmond Journal of Law & Technology

Cell phones emit low-level radiation. Constantly.

The Dark Side Of The Boom: The Peculiar Dilemma Of Modern False Claims Act Litigation, David S. Torborg

Journal of Law and Health

Spurred by treble damages, substantial penalties, and lucrative relator awards, litigation under federal and state False Claims Act (“FCA”) statutes has exploded in recent years. Much of that explosion stems from aggressive and creative legal theories that challenge controversial industry practices or even well-known loopholes or waste in government policy. Evidence from governmental entities can be critically important in litigating these FCA claims. Unique aspects of False Claims Act actions, however, can aggravate the risk of losing this important evidence, leaving the parties, judges, and juries without the evidentiary record necessary to equitably adjudicate these disputes. Defendants can face the …

What's Law Got To Do With It?: Why We Should Mediate, Rather Than Litigate, Cases Of Wrongful Life, Shawna Benston

Cardozo Journal of Conflict Resolution

In light of the legal and societal disfavor toward wrongful life suits, this Note examines the cultural, (bio)ethical, legal, and philosophical background of the wrongful life tort. While the disability rights movement and the pro-life strains of the abortion debate hope to silence proponents of wrongful life suits, the evolution of a legal right to die underscores the importance of autonomy and privacy for the individual. Philosophical exploration of prospective children-including the nonidentity problem, claim-rights and corresponding duties, and the subjunctive-threshold notion of harmhelps explain the confusion and moral conundrum that pervade the very notion of "wrongful life" and that …

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

Seattle University Law Review Online

No abstract provided.

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

Kentucky Law Journal

No abstract provided.

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 …

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.

Plaintiff Control And Domination In Multidistrict Mass Torts, S. Todd Brown

Journal Articles

No abstract provided.

Bankruptcy Trusts, Transparency And The Future Of Asbestos Compensation, S. Todd Brown

Journal Articles

As we enter the fifth decade of asbestos personal injury litigation, much of the debate over its immediate future centers on the operations of bankruptcy trusts and their relationship to the tort system. Roughly 100 companies have entered bankruptcy as a result of their unsustainable asbestos liabilities, and, from these bankruptcies, approximately 60 trusts have been established or are in the process of being established. Some critics contend that the trust system is plagued by fraud and abuse; allowing plaintiffs' lawyers to obtain compensation from the trusts for fraudulent claims and to evade relevant discovery obligations under applicable state law. …

Defamation And False Rape Claims: Policies, Attitudes, And Suggested Reform In The United States And The United Kingdom, Claire Steinman

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and societal implications of defamation cases arising from false rape claims in the United States and the United Kingdom. It argues that while U.S. defamation law provides stricter standards for liability, the U.K.'s approach to punishment is more effective in deterring false claims. The optimal solution, the note suggests, is to combine the U.S. legal framework for determining liability with the U.K.'s harsher penalties to protect both the falsely accused and genuine victims.

Unlikely Partners: Tort Law As A Tool For Trans Activism, Courtney Sirwatka

Cardozo Journal of Equal Rights & Social Justice

The note argues that tort law reform and trans activism can mutually benefit each other by addressing systemic discrimination and advancing equality for trans individuals. It critiques the legal system for perpetuating discrimination through its emphasis on physical injury over emotional or sexual harm and its refusal to validate trans identities. The analysis proposes that recognizing sexual autonomy and reproduction as protected interests in tort law, along with legal education reforms, could legitimize trans narratives and lead to meaningful change.

Jeffrey O'Connell And The Market In Tort Claims, Anthony J. Sebok

Articles

This article examines a transitional period in Jeffrey O'Connell's long and productive career as an observer and critic of the American civil justice system. By the early 1970's O'Connell had begun to abandon enterprise liability as a solution to the waste and undercompensation he saw in the tort system. Eventually O'Connell would develop solutions that focused on constraining plaintiffs' attorneys, and less on no-fault compensation. Before reaching this point, O'Connell proposed a no-fault insurance scheme that would be paid for by fault-based tort litigation. This proposal, which he called "elective first party no-fault insurance" ("EFPI") is the focus of this …

Eggshell Economics: A Revolutionary Approach To The Eggshell Plaintiff Rule, Steve Calandrillo, Dustin E. Buehler

Articles

For more than a century, courts have universally applied the eggshell plaintiff rule, which holds tortfeasors liable for the full extent of the harm inflicted on vulnerable “eggshell” victims. Liability attaches even when the victim’s condition and the scope of her injuries were completely unforeseeable ex ante.

This Article explores the implications of this rule by providing a pioneering economic analysis of eggshell liability. It argues that the eggshell plaintiff rule misaligns parties’ incentives in a socially undesirable way. The rule subjects injurers to unfair surprise, fails to incentivize socially optimal behavior when injurers have imperfect information about expected accident …