Picture This: Congress Doing The Decent Thing Permitting The Victims Of Their Ex-Lover's Cyberbullying To Go To Court Under A Revised Communications Decency Act.,
2012
Seton Hall Law
Picture This: Congress Doing The Decent Thing Permitting The Victims Of Their Ex-Lover's Cyberbullying To Go To Court Under A Revised Communications Decency Act., John V. Kelly
Student Works
No abstract provided.
Connick V. Thompson: Unclear Motives Behind A Misguided Result,
2012
University of Maryland Francis King Carey School of Law
Connick V. Thompson: Unclear Motives Behind A Misguided Result, Claude Nicolas
Maryland Law Review Online
No abstract provided.
No Laughing Matter: The Intersection Of Legal Malpractice And Professionalism,
2012
Florida A & M University College of Law
No Laughing Matter: The Intersection Of Legal Malpractice And Professionalism, Nicola A. Boothe-Perry
Journal Publications
In an effort to increase professionalism among lawyers, an analysis of the relationship between lawyers' professional behavior and legal malpractice claims is warranted. This Article will explore that relationship, and address the need to fuse the two components in an effort to enhance professionalism. The Article will specifically seek to address the questions: (1) Should professionalism be admissible, or even conclusive, evidence of the standard of care of the "reasonable attorney" in legal malpractice cases? and (2) Will a proper definition of the "reasonable attorney" in the context of legal malpractice cases encourage and ultimately enhance professionalism in legal society?
Preparatory Negligence,
2012
Indiana University Maurer School of Law
Preparatory Negligence, Robert H. Heidt
Articles by Maurer Faculty
This Essay discusses the appropriate significance in tort law of a negligent attempt to perform an injurious activity when the evidence is insufficient to show the actual performance of the activity was negligent. The author calls such a negligent attempt uncoupled with sufficient evidence of negligent performance "preparatory negligence." An example would be driving a car when one is so inebriated that the decision to drive is negligent but those injured in a subsequent accident are unable to show the inebriated driver's actual driving was negligent. The author argues that preparatory negligence alone should never warrant tort liability. Rather, those …
An Enduring Oddity: The Collateral Source Rule In The Face Of Tort Reform, The Affordable Care Act And Increased Subrogation,
2012
University of Dayton
An Enduring Oddity: The Collateral Source Rule In The Face Of Tort Reform, The Affordable Care Act And Increased Subrogation, Adam Todd
School of Law Faculty Publications
Today, despite significant legislative changes in healthcare insurance, tort reform, and subrogation, the collateral source rule has remained in force in many jurisdictions even in the face of rising health insurance costs. This Article argues that as long as health insurance markets are fragmented, the collateral source rule will continue to play an important normative role in the administration of the tort injury compensation process. The rule also helps deter tortious behavior, supports the insured's contractual expectations, is consistent with distributive fairness, and ensures that those engaging in risky activities bear the full cost of injuries. The collateral source will …
Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case,
2012
University of Akron School of Law
Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case, Samuel Oddi
Akron Law Faculty Publications
As literary devices, a “story-within-a story” and a “play-within-a-play” have a long lineage. Shakespeare seems to have been particularly fond of these devices. The legal analog may be seen as the “case-within-a-case” (“trial-within-a-trial,” “suit-within-a-suit”) arising in legal malpractice cases. The case-within-a-case terminology seems to be the most commonly used and hence will be used herein. While it is clear that the “case” is the malpractice case, it is not so clear what the “case-within-” is, which is usually referred to as the “underlying case.” Often, it seems to be presumed that the underlying case is limited to litigation, which would …
Shackled And Chained In The Schoolyard: A New Approach To Schools' Section 1983 Liability Under The Special Relationship Test,
2012
Benjamin N. Cardozo School of Law
Shackled And Chained In The Schoolyard: A New Approach To Schools' Section 1983 Liability Under The Special Relationship Test, Ali Davison
Cardozo Journal of Equal Rights & Social Justice
No abstract provided.
Erie And The Rules Of Evidence,
2012
Vanderbilt University Law School
Erie And The Rules Of Evidence, Edward K. Cheng
Vanderbilt Law School Faculty Publications
Jay Tidmarsh offers an intriguing new test for drawing the allimportant line between procedure and substance for purposes of Erie. The Tidmarsh test is attractively simple, yet seemingly reaches the right result in separating out truly “procedural” rules from more substantive ones. Since I am not a proceduralist, in this Response I will leave the Tidmarsh test’s explanatory power and practical workability vis-à-vis general civil procedure rules to others more qualified than I. Instead, I want to focus on the implications of the Tidmarsh test for the Federal Rules of Evidence. Like others in the evidence world, I have long …
Malpractice Liability Related To Foreign Outsourcing Of Legal Services,
2012
St. Mary's University School of Law
Malpractice Liability Related To Foreign Outsourcing Of Legal Services, Vincent R. Johnson, Stephen C. Loomis
Faculty Articles
The outsourcing of client-related tasks to service providers in other countries is likely to generate malpractice claims against American law firms. This Article discusses the wide range of theories under which an outsourcing American law firm may be liable for its own negligence or for the actions of outsourcing providers. These theories include negligence by the outsourcing law firm, vicarious liability for the conduct of firm principals and employees, vicarious liability for the conduct of independent contractors, and vicarious liability for the conduct of business partners.
The Laws Of Image,
2012
University at Buffalo School of Law
The Laws Of Image, Samantha Barbas
Journal Articles
We live in an image society. Since the turn of the 20th century if not earlier, Americans have been awash in a sea of images throughout the visual landscape. We have become highly image-conscious, attuned to first impressions and surface appearances, and deeply concerned with our own personal images – our looks, reputations, and the impressions we make on others. The advent of this image-consciousness has been a familiar subject of commentary by social and cultural historians, yet its legal implications have not been explored. This article argues that one significant legal consequence of the image society was the evolution …
Untold Truths: What Adoptive Parents Should Know About Their Adoptee's In Utero Drug And Alcohol Exposure,
2012
Benjamin N. Cardozo School of Law
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.
The Failed Promise Of A General Theory Of Pure Economic Loss: An Accident Of History?,
2012
Benjamin N. Cardozo School of Law
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 …
Making Plaintiffs Whole: A Tax Problem Of Interest,
2012
University of Arkansas
Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster
Oklahoma Law Review
This article illustrates the dramatic tax impact of interest awards in otherwise non-taxable litigation recoveries and proposes two alternative legislative solutions for the over-taxing of plaintiffs in these cases. While plaintiffs who recover personal injury awards typically receive favorable tax treatment, those who receive interest on such awards are taxed on the interest and often are not able to utilize deductions for attorney’s fees and other costs paid to obtain the award. Further, the attorney’s portion of the recovery in a contingency fee arrangement will be included in the plaintiff’s gross income. The result is that the plaintiff recovers less …
Revitalizing Informed Consent And Protecting Patient Autonomy: An Appeal To Abandon Objective Causation,
2012
Albany Law School
Revitalizing Informed Consent And Protecting Patient Autonomy: An Appeal To Abandon Objective Causation, Evelyn Tenenbaum
Oklahoma Law Review
No abstract provided.
Minor's Personal Injury Actions And Settlements In North Carolina,
2012
Campbell University School of Law
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 …
New Private Law Theory And Tort Law: A Comment,
2012
Boston University School of Law
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 …
Learning From The Master: Things Betty Thompson Taught Me,
2012
American University Washington College of Law
Learning From The Master: Things Betty Thompson Taught Me, David Spratt
Scholarly Articles in Law Reviews & Journals
No abstract provided.
Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine,
2012
Touro Law Center
Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky
Touro Law Review
Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.
Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege,
2012
The Catholic University of America, Columbus School of Law
Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege, A.G. Harmon
Scholarly Articles
Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to "private figure" plaintiffs when a qualified, or "conditional," privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a …
Defensive Medicine And Obstetric Practices,
2012
Duke Law School
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 …
