Torts Commons^™

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 …

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 …

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.

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Publications

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in the food …

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

Seattle University Law Review Online

No abstract provided.

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 …

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 …

Late-Night Law Firms, Scott Hershovitz

Reviews

But it turns out that those late-night lawyers may not deserve the scorn that they get. In Sunlight and Settlement Mills, Nora Freeman Engstrom argues that firms like the ones that advertise late at night have developed practice models that achieve many of the aims that reformers have for no-fault accident compensation schemes. They deliver compensation cheaply and quickly, because they settle almost every claim and nearly never go to court. They resolve claims predictably and consistently, on account of cozy relationships with insurance adjusters that lead to a shared sense as to what different sorts of claims are …

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 …

An Introduction To Climate Change Liability Litigation And A View To The Future, Michael B. Gerrard, Joseph A. Macdougald

Faculty Scholarship

This article discusses the advancement of climate change litigation. It explores two approaches to climate change litigation; the first is to use the federal regulatory apparatus and the second is to use the tort system. The article explores key questions in climate change litigation such as, who is responsible for deciding the appropriate level of harmful emissions? How should courts handle the long tail effects of climate change? What are the proper forums to litigate in? And, what is the role of the federal government in climate change litigation?

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.

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.

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 …

Understanding Causation In Private Securities Lawsuits: Building On Amgen, James D. Cox

Faculty Scholarship

With Amgen, the Supreme Court’s majority once again holds that inquiry into the alleged market impact of a misrepresentation is not required to invoke fraud on the market approach to causation so that the class can be certified. Rather than just leaving matters where they have been since the Supreme Court’s muddled encounter with causation in Basic Inc. v. Levinson, the Supreme Court’s most recent decision appears to relax some earlier-held tenets with respect to markets believed sufficiently efficient for fraud on the market to be invoked. This Article not only identifies the central flaw of Basic that has over …

Moral Obligations Of Landowners: An Examination Of Doctrine, Stewart E. Sterk

Articles

Efficiency concerns generally take center stage in modern discussions of property's institutional foundations. But property's moral dimension has a far longer pedigree. Two of the ten commandments implicitly acknowledge the importance of property. "Thou shalt not steal" has no meaning in the absence of property ownership. Similarly, the command that "thou shalt not covet your neighbor's house" assumes that the house has an owner whose rights merit respect.

Malpractice Mobs: Medical Dispute Resolution In China, Benjamin L. Liebman

Faculty Scholarship

China has experienced a surge in medical disputes in recent years, on the streets and in the courts. Many disputes result in violence. Quantitative and qualitative empirical evidence of medical malpractice litigation and medical disputes in China reveals a dynamic in which the formal legal system operates in the shadow of protest and violence. The threat of violence leads hospitals to settle claims for more money than would be available in court and also influences how judges handle cases that do wind up in court. The detailed evidence regarding medical disputes presented in this Essay adds depth to existing understanding …

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

Faculty Scholarship

No abstract provided.

Are Risks Wrong?, Anthony J. Sebok

Articles

No abstract provided.