Torts Commons^™

Risk Magnified: Standing Under The Statist Lens, Mary D. Fan

Articles

Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of “erratic, even bizarre” judicial recognition of supplicants vexed Professor Joseph Vining as early as 1978. Recent scholarship argues that injuries are seen through a subjective lens, reflecting the relative privilege of the judiciary and their concomitant difficulties in perceiving injuries to minorities and the poor. This is a troubling contention. So long as another, objective explanation remains, …

Admiralty's In Extremis Doctrine: What Can Be Learned From The Restatement (Third) Of Torts Approach?, Craig H. Allen

Articles

The in extremis doctrine has been part of maritime collision law in the U.S. for more than one hundred and sixty years. One would expect that a century and a half would provide ample time for mariners and admiralty practitioners and judges to master the doctrine. Alas, some of the professional nautical commentary and even an occasional collision case suggest that the doctrine is often misunderstood or misapplied. A fair number of admiralty writers fail to understand that the in extremis doctrine is not a single "in extremis rule," but rather several rules, all of which are related to the …

Incorporating Literary Methods And Texts In The Teaching Of Tort Law, Zahr K. Said

Articles

Literature is comparatively under-investigated as an arena for tort pedagogy and for first-year courses in the legal curriculum generally. Where literature tends to appear in law school, it most frequently does so in the form of stand-alone law-and-literature classes, which usually focus heavily on literature.

In teaching a first-year tort law course at the University of Washington School of Law, I have explicitly used literature to aid and amplify legal analysis. The emphasis has been on law, rather than on literature. Nonetheless, literary texts and methods helped my students investigate how the law conceives of, and expresses, duties and losses …

Untold Truths: What Adoptive Parents Should Know About Their Adoptee's In Utero Drug And Alcohol Exposure, Mehrnoosh Torbatnejad

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Minor's Personal Injury Actions And Settlements In North Carolina, John M. Kirby

Campbell Law Review

This Article addresses the issues that are peculiar to claims of minors in North Carolina. Persons who are the age of majority prosecute and settle claims that raise numerous substantive and procedural issues. These issues can be compounded, however, when the claimant is a minor. The distinct issues that arise with a minor’s claim include: that a minor is often held to a different standard of conduct; that other persons are held to a higher or different standard of conduct toward a minor; that other persons may have a duty to protect the minor; that courts generally protect the interests …

Hidden Costs? Malpractice Allegations And Defensive Medicine Among Cardiac Surgeons, Barak D. Richman, Marco Huesch

Faculty Scholarship

This article evaluates the impact of private allegations of malpractice against cardiac surgeons on their patients’ outcomes and characteristics. While tort law may impact observable physician costs, malpractice allegations also impose hidden costs that could also affect physician behavior. We employ a large and multi-year panel dataset and patient-level analysis to ascertain whether malpractice allegations influence a surgeon’s practicing behavior. Using a generalized difference-in-difference model that controls for unobserved patient heterogeneity, clustering of patients within surgeon offices, contemporaneous expected risk, and other patient variables, we measure whether an allegation of malpractices affects a physician’s service intensity and use of healthcare …

Defensive Medicine And Obstetric Practices, Michael D. Frakes

Faculty Scholarship

Using data on physician behavior from the 1979–2005 National Hospital Discharge Surveys (NHDS), I estimate the relationship between malpractice pressure, as identified by the adoption of non-economic damage caps and related tort reforms, and certain decisions faced by obstetricians during the delivery of a child. The NHDS data, supplemented with restricted geographic identifiers, provides inpatient discharge records from a broad enough span of states and covering a long enough period of time to allow for a defensive medicine analysis that draws on an extensive set of variations in relevant tort laws. Contrary to the conventional wisdom, I find no evidence …

Civil Recourse, Damages-As-Redress, And Constitutional Torts, Michael L. Wells

Georgia Law Review

Modern tort theory is dominated by the principle of loss
allocation, which uses liability and damages as
instruments for assigning losses to deter unwanted
behavior and to compensate the plaintiff. Under loss
allocation, the central principle of damages is to make the
plaintiff whole through 'full" compensation. Recently, as
an alternative to loss allocation,Professors John Goldberg
and Benjamin Zipursky have advanced a civil recourse
theory of damages. In contrast to loss allocation, civil
recourse focuses tort law on empowering plaintiffs to seek
redress by evaluating damages through the lens of 'fair"
compensation. Goldberg and Zipursky's work is especially
timely because, …

The New Class Action Landscape: Trends And Developments In Class Certification And Related Topics, John C. Coffee Jr., Alexandra D. Lahav

Faculty Scholarship

In this memorandum, Professors Coffee and Lahav describe and assess the highlights of class certification rulings from 2005 to 2012, and track trends in approaches to certification.

The Failed Promise Of A General Theory Of Pure Economic Loss: An Accident Of History?, Anthony J. Sebok

Articles

The article explores the evolution and challenges of pure economic loss doctrine in American tort law, focusing on the contrasting approaches of Robert Rabin and Gary Schwartz. While Schwartz critiques the feasibility of a general theory due to the diversity of economic injuries, Rabin advocates for a nuanced, fact-specific approach. The article highlights the ad hoc nature of the doctrine, as seen in key cases like JAire Corp. v. Gregory and Aas v. Superior Court, which reflect shifting judicial attitudes toward negligence and liability. It concludes that the failure to establish a coherent principle for determining duty underscores the ongoing …

Further Perspectives On Corporate Wrongdoing, In Pari Delicto, And Auditor Malpractice, Deborah A. Demott

Faculty Scholarship

No abstract provided.

An Economic Perspective On Preemption, Keith N. Hylton

Faculty Scholarship

This Essay has two goals. The first is to present an economic theory of preemption as a choice among regulatory regimes. The optimal regime choice model is used to generate specific implications for the court decisions on preemption of products liability claims. The second objective is to extrapolate from the regime choice model to consider its implications for broader controversies about preemption.

New Private Law Theory And Tort Law: A Comment, Keith N. Hylton

Faculty Scholarship

This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …

Rescuing The Dignitary Torts From The Constitution, Cristina Carmody Tilley

Faculty Publications

The rights of individuals to recover for dignitary torts has been withering for the past forty years, since the Supreme Court constitutionalized the state common law tort of defamation in New York Times v. Sullivan in 1964. The Court announced in that case that the First Amendment required it to impose high standards for individual defamation claims in order to protect robust speech. As that principle has taken hold, it has in effect squeezed the rights of individuals to recover for invasion of privacy and intentional infliction of emotional distress as well as defamation. Just last Term, the Court held …

Tsunami: At&T Mobility Llc V. Concepcion Impedes Access To Justice, Jean R. Sternlight

Scholarly Works

No abstract provided.

Knowledge, Attitudes Toward Corporations, And Belief In A Just World As Correlates Of Tort Reform Attitudes, Molly J. Walker Wilson, Ruth H. Warner

All Faculty Scholarship

Recent legislation in tort law has resulted in such changes as states capping punitive and non-economic damages as well as abolishing the collateral source rule and joint and several liability. The purpose of the present research is to examine attitudes toward changes in tort law. We asked American adults about their attitudes toward the civil justice system and its players, experiences in the civil justice system, and belief in a just world. We found that a more negative attitude toward litigation and juries, higher belief in a just world, and a more positive attitude toward corporations and doctors predicted a …

Summary Of Munda V. Summerlin Life & Health Ins. Co., 127 Nev. Adv. Op. No. 83, Joseph Bowen

Nevada Supreme Court Summaries

An appeal from a district court order granting a motion to dismiss in a tort action.

Tnuva Central Cooperative V. Raabi Estate, Esther Hayut, Isaac Amit, Uzi Vogelman

Translated Opinions

[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.]

An appeal and cross appeal challenging the decision of the Tel Aviv District Court (Partial Judgment and Supplementary Judgment,) where the court partially granted a consumer class action suit, which was granted leave to be submitted in CC 10085/080 (hereinafter: Tnuva). The class action suit revolved around the misleading of the consumer public and the production of a milk product in violation of binding …

Medical Malpractice: The Italian Experience, Claudia Dimarzo

Chicago-Kent Law Review

Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations …

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …