The Dignity, Rights, And Responsibilities Of The Jury: On The Structure Of Normative Argument,
2011
Northwestern University School of Law
The Dignity, Rights, And Responsibilities Of The Jury: On The Structure Of Normative Argument, Robert P. Burns
Faculty Working Papers
Many theorists follow an inevitably circular method in evaluating legal institutions and practices. "Considered judgments of justice" embedded in practices and institutions in which we have a high level of confidence can serve as partial evidence for the principles with which they are consistent, principles that can then have broader implications. Conversely, principles that we have good reason to embrace can serve as partial justification for institutions and practices with which they are consistent. This is the heart of Rawls' notion of "reflective equilibrium," where we "work at both ends" to justify institutions, practices, and principles. This method is applicable …
An Essay On Torts: States Of Argument,
2011
Northwestern University School of Law
An Essay On Torts: States Of Argument, Marshall S. Shapo
Faculty Working Papers
This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the "states of argument" that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the tradtional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …
Shortcuts In Employment Discrimination Law,
2011
Florida International University College of Law
Shortcuts In Employment Discrimination Law, Kerri Lynn Stone
Faculty Publications
Are employment discrimination plaintiffs viewed by society and by judges with an increased skepticism? This article urges that the same actor inference, the stray comment doctrine, and strict temporal nexus requirements, as courts have applied them, make up a larger and dangerous trend in the area of employment discrimination jurisprudence- that of courts reverting to special, judge-made "shortcuts" to curtail or even bypass analysis necessary to justify the disposal or proper adjudication of a case. This shorthand across different doctrines reveals a willingness of the judiciary to proxy monolithic assumptions for the individualized reasoned analyses mandated by the relevant antidiscrimination …
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011),
2011
UIC School of Law
Reshaping The Traditional Limits Of Affirmative Duties Under The Third Restatement Of Torts, 44 J. Marshall L. Rev. 319 (2011), Victor E. Schwartz, Christopher E. Appel
UIC Law Review
No abstract provided.
Tort Reform And Implied Conflict Preemption, 44 J. Marshall L. Rev. 827 (2011),
2011
UIC School of Law
Tort Reform And Implied Conflict Preemption, 44 J. Marshall L. Rev. 827 (2011), Martin A. Kotler
UIC Law Review
No abstract provided.
Suicide Causation Experts In Teen Wrongful Death Claims: Will They Assist The Trier Of Fact?, 45 J. Marshall L. Rev. 51 (2011),
2011
UIC School of Law
Suicide Causation Experts In Teen Wrongful Death Claims: Will They Assist The Trier Of Fact?, 45 J. Marshall L. Rev. 51 (2011), Andrea Maciver
UIC Law Review
No abstract provided.
Tort Liabilities And Torts Law: The New Frontier Of Chinese Legal Horizon,
2011
Temple University Beasley School of Law
Tort Liabilities And Torts Law: The New Frontier Of Chinese Legal Horizon, Mo Zhang
Richmond Journal of Global Law & Business
China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effective as of July 1, 2010, forms a comprehensive framework that regulates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law.
The Torts Law premises torts on the fault liability with a few exceptions where the …
Reforming Public Interest Tort Law To Redress Public Health Epidemics,
2011
University of Maryland Francis King Carey School of Law
Reforming Public Interest Tort Law To Redress Public Health Epidemics, Michael L. Rustad, Thomas H. Koenig
Journal of Health Care Law and Policy
No abstract provided.
Altered Standards Of Care: Needed Reform For When The Next Disaster Strikes,
2011
University of Maryland Francis King Carey School of Law
Altered Standards Of Care: Needed Reform For When The Next Disaster Strikes, Rebecca Mansbach
Journal of Health Care Law and Policy
No abstract provided.
Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys,
2011
American University Washington College of Law
Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys, Paul F. Figley
Scholarly Articles in Law Reviews & Journals
This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible …
Notes On Borrowing And Convergence,
2011
American University Washington College of Law
Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe
Scholarly Articles in Law Reviews & Journals
his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.
Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability,
2011
American University Washington College of Law
Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper
Scholarly Articles in Law Reviews & Journals
Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.
This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …
Expectations In Tort,
2011
University of South Carolina - Columbia
Debate: The Future Of Mass Torts,
2011
University of Miami School of Law
Debate: The Future Of Mass Torts, Sergio J. Campos, Howard M. Erichson
Articles
No abstract provided.
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida,
2011
Duke Law School
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee
Faculty Scholarship
No abstract provided.
The Case Against Preemption: Vaccines & Uncertainty,
2011
University of Kentucky College of Law
The Case Against Preemption: Vaccines & Uncertainty, Mary J. Davis
Law Faculty Scholarly Articles
This article begins with a brief recap of the state of current preemption doctrine and how it governs the interaction of federal regulation of product manufacturers and state tort actions related to the actions of those manufacturers. Second, the article provides observations on how that doctrine might apply to vaccine injury litigation. Bruesewitz v. Wyeth, Inc. involves the preemptive scope of the Vaccine Act and the unique compensation system Congress created to respond to vaccine injuries. Bruesewitz was decided on February 22, 2011, and held that design defect claims are expressly preempted by the Vaccine Act. This article endeavors …
The Supreme Court Disposes Of A Nuisance Suit: American Electric Power V. Connecticut,
2011
Case Western University School of Law
The Supreme Court Disposes Of A Nuisance Suit: American Electric Power V. Connecticut, Jonathan H. Adler
Faculty Publications
In American Electric Power v. Connecticut the Supreme Court confronted climate change litigation for the second time. Whereas Massachusetts v. EPA was a closely divided court decision with dramatic and far-reaching legal and policy implications, AEP was a narrow, unanimous opinion that hewed closely to well-settled precedent. In AEP the Court side-stepped difficult jurisdictional questions and rejected an ambitious effort to turn the federal common law of nuisance into a judicially administered environmental regulatory regime. While not erecting any new barriers to future climate suits, the Court’s opinion raised cautions about trying to make climate change policy through the judiciary. …
Equestrian Helmet Laws And Their Effect On Equestrian Liability,
2011
University of Kentucky
Equestrian Helmet Laws And Their Effect On Equestrian Liability, Litany Webster
Kentucky Journal of Equine, Agriculture, & Natural Resources Law
No abstract provided.
Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011),
2011
The John Marshall Law School
Good Medicine/Bad Medicine And The Law Of Evidence: Is There A Role For Proof Of Character, Propensity, Or Prior Bad Conduct In Medical Negligence Litigation?, 63 S.C. L. Rev. 367 (2011), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
No abstract provided.
Economic Loss, Punitive Damages, And The Exxon Valdez Litigation,
2011
University of Haifa
Economic Loss, Punitive Damages, And The Exxon Valdez Litigation, Dr. Ronen Perry
Georgia Law Review
On March 24, 1989, the Exxon Valdez ran aground on
Bligh Reef off the Alaskan coast, spilling millions of
gallons of crude oil into Prince William Sound. At the
time, the spill was probably the worst environmental
disaster in American history, and it sparked unusually
extensive and complex litigation, as well as a vast
academic literature. The Article uncovers a fundamental
yet unnoticed inconsistency in American land-based and
maritime tort law that surfaced through the Exxon Valdez
litigation. On the one hand, liability for purely economic
losses was strictly limited under Robins Dry Dock v. Flint,
leaving dozens of thousands …
