Torts Commons^™

Impersonating The Legislature: State Attorneys General And Parens Patriae Product Litigation, Donald G. Gifford

Donald G Gifford

The state attorney general has emerged during the past decade as a “super plaintiff” in state parens patriae litigation against manufacturers of cigarettes, automobiles, lead paint, and pharmaceuticals. Attorneys general sue on behalf of their states as the collective plaintiff, seeking reimbursement for the costs of treating or preventing product-caused diseases suffered by individual residents, even though such individual victims would not themselves be able to recover as plaintiffs. More importantly, they seek to supplant the regulatory regimes previously enacted by Congress, the state legislature, or federal agencies with one that reflects their own visions. This Article traces how state …

Market Share Liability Beyond Des Cases: The Solution To The Causation Dilemma In Lead Paint Litigation?, Donald G. Gifford, Paolo Pasicolan

Donald G Gifford

Over 300,000 young children in America—disproportionately poor and children of color—suffer from childhood lead poisoning. This disease ordinarily is caused by the deterioration of lead paint into flakes, chips, and dust that children ingest or inhale. Victims of childhood lead poisoning have tried to sue manufacturers of lead paint or lead pigment, but they face a seemingly insurmountable obstacle. Traditional tort law requires a plaintiff to prove that a specific tortfeasor caused the harm. This is almost impossible in the lead paint context because the paint that caused the harm usually consists of many layers, applied over the course of …

Suing The Tobacco And Lead Pigment Industries: Government Litigation As Public Health Prescription, Donald G. Gifford

Donald G Gifford

In Suing the Tobacco and Lead Pigment Industries, legal scholar Donald G. Gifford recounts the transformation of tort litigation in response to the challenge posed by victims of 21st-century public health crises who seek compensation from the product manufacturers. Class action litigation promised a strategy for documenting collective harm, but an increasingly conservative judicial and political climate limited this strategy. Then, in 1995, Mississippi attorney general Mike Moore initiated a parens patriae action on behalf of the state against cigarette manufacturers. Forty-five other states soon filed public product liability actions, seeking both compensation for the funds spent on public health …

The Synthesis Of Legal Counseling And Negotiation Models: Preserving Client-Centered Advocacy In The Negotiation Context, Donald G. Gifford

Donald G Gifford

No abstract provided.

The Death Of Causation: Mass Products Torts' Incomplete Incorporation Of Social Welfare Principles, Donald G. Gifford

Donald G Gifford

Legal actions against the manufacturers of disease-causing products, such as cigarettes and asbestos insulation, have redefined the landscape of tort liability during the past generation. These actions bedevil courts, because any particular victim often is unable to identify the manufacturer whose product caused her harm. Increasingly, but inconsistently, courts allow victims to recover without proof of individualized causation. This article argues that instrumental approaches seek to turn mass products tort law into the equivalent of a social welfare program, not unlike workers’ compensation or Social Security. As with any such program, the accident compensation system must include compensation entitlement boundaries, …

The Causes Of The Medical Malpractice Crisis: An Analysis Of Claims Data And Insurance Company Finances, David J. Nye, Donald G. Gifford, Bernard L. Webb, Marvin A. Dewar

Donald G Gifford

No abstract provided.

Litigation Trends In Florida: Saga Of A Growth State, Donald G. Gifford, David J. Nye

Donald G Gifford

No abstract provided.

Public Nuisance As A Mass Products Liability Tort, Donald G. Gifford

Donald G Gifford

No abstract provided.

The Peculiar Challenges Posed By Latent Diseases Resulting From Mass Products, Donald G. Gifford

Donald G Gifford

Legal actions against manufacturers of products that cause latent diseases, such as asbestos products, cigarettes, lead-pigment, and Agent Orange, are the signature torts of our time. Yet within this rather important subset of tort liability, it is unlikely that the imposition of liability actually results in loss prevention. Three factors, present in varying combinations in the context of latent diseases resulting from product exposure, frustrate the deterrent impact of liability. First, an extended period of time—sometimes decades—passes between the time of the manufacturer’s distribution of the product and the imposition of liability. Second, the accident compensation system frequently is unable …

Una Obligación Sin Prestación O Sólo Una Hipótesis De Cumplimiento Defectuoso: La Responsabilidad Del Médico Dependiente, Renzo E. Saavedra Velazco

Renzo E. Saavedra Velazco

En la presente nota abordamos brevemente un aspecto de suma complejidad teórica y de vivo interés práctico: la responsabilidad del médico dependiente y, en particular, la justificación que le sirve de sustento. En efecto, debido a la decidida difusión, incluso entre nosotros, de la noción de la relación obligatoria como una entidad compleja, se acepta la existencia de deberes accesorios e incluso deberes autónomos respecto de la prestación principal. Ello ha generado una tendencia a explicar la responsabilidad de la estructura sanitaria y del médico que en ella sirve como de naturaleza contractual, si bien ello no esta exento de …

Faculty Colloquia, Spring 2009 Series, Alfred Brophy, Dennis Crouch, Zanita Fenton, Mitu Gulati, Scott Hershovitz, Christine Hurt, Joseph Miller, Juliet Moringiello, Robert Rhee, Robert Steinbuch, Brian Tamanaha

Robert Rhee

No abstract provided.

Bending Nature, Bending Law, David Owen

Faculty Publications

No abstract provided.

Delimitación Téorica Del Delito Penal Fiscal, Bruno L. Costantini García

Bruno L. Costantini García

Anális de los elementos constitutivos del delito fiscal, la acción delictiva, los grados de ejecución, la consumación y los responsables.

Pretende distinguir el delito penal común del delito penal fiscal con base en sus elementos y pretende aportar una reflexión de la criminalización del delito fiscal en nuestros tiempos, usado por la Autoridad Hacendaria como un medio de represíón y de opresión de los derechos del contribuyente.

Re-Examining Acts Of God, Jill M. Fraley

Scholarly Articles

For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man's anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude …

Responsibility In Negligence: Why The Duty Of Care Is Not A Duty “To Try”, Ori J. Herstein

Cornell Law Faculty Publications

Even though it offers a compelling account of the responsibility-component in the negligence standard—arguably the Holy Grail of negligence theory—it is a mistake to conceive of the duty of care in negligence as a duty to try to avert harm. My goal here is to explain why and to point to an alternative account of the responsibility-component in negligence.

The flaws in conceiving of the duty of care as a duty to try are: failing to comport with the legal doctrine of negligence and failing as a revisionary account for the law; overly burdening autonomy and restricting the liberty of …

Summary Of Strickland V. Waymire, 126 Nev. Adv. Op. No. 25, Keith Pickard

Nevada Supreme Court Summaries

Appeal from a district court summary judgment ordering appellants’ recall elections to proceed based upon a reading of Article 2, Section 9 of the Nevada Constitution whereby any registered voter may sign the recall petition to reach the 25% numerical threshold. The Supreme Court unanimously held that only those voters who actually voted in the election which seated the officials may count toward the 25% threshold.

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja R. West

Scholarly Works

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it.

In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the emerging conflict between …

Material Contribution To Justice - Toxic Causation After Resurfice Corp. V. Hanke, Lynda M. Collins, Heather Mcleod-Kilmurray

Osgoode Hall Law Journal

The vast universe of chemicals in the Canadian environment is presently understood only poorly by science. For many thousands of chemicals, important data regarding chronic toxicity are lacking. As a result, the requirement that the plaintiff in a negligence action prove causation of illness on a but-for standard has frequently been unattainable. In Resurfice Corp. v. Hanke, the Supreme Court of Canada articulated an important exception to the but-for test. In circumstances where but-for causation is unprovable due to limits in scientific knowledge, proof that a defendant materially contributed to the plaintiff's risk of incurring the type of injury that …

Intent In Tort Law, Keith N. Hylton

Faculty Scholarship

This paper, prepared for the 2009 Monsanto Lecture in Tort Jurisprudence, explains intent standards in tort law on the basis of the incentive effects of tort liability rules. Intent rules serve a regulatory function by internalizing costs optimally. The intent standard for battery internalizes costs in a manner that discourages socially harmful acts and at the same time avoids discouraging socially beneficial activity. The intent standard for assault is more difficult to satisfy than that for battery because it is designed to provide a subsidy of a sort to the speech that is often intermixed with potentially threatening conduct. In …

Summary Of Renown Health, Inc. V. Vanderford, 126 Nev. Adv. Op. No. 24, Kristopher Milicevic

Nevada Supreme Court Summaries

Appeal from a district court’s interlocutory order granting partial summary judgment to Vanderford based on the imposition of a nondelegable duty on Renown Health, Inc. The question on appeal was whether a hospital owes an absolute nondelegable duty to provide competent medical care to emergency room patients through independent contractor doctors.