Torts Commons^™

Property Rules And Defensive Conduct In Tort Law Theory, Keith N. Hylton

Faculty Scholarship

What role does defensive conduct play in a utilitarian theory of tort law? Why are rational (as opposed to instinctive) defensive actions permitted by tort doctrine?

To address these questions I will build on the property and liability rules framework. I argue that defensive conduct plays an important role in establishing the justification for and understanding the function of property rules, such as trespass doctrine. I show that when defensive actions are taken into account, property rules are socially preferable to liability rules in low transaction cost settings, because they obviate costly defensive actions. I extend the framework to provide …

Summary Of Fanders V. Riverside Resort & Casino, 126 Nev. Adv. Op. No. 50, Bracken Longhurst

Nevada Supreme Court Summaries

An appeal of an Eighth Judicial District Court’s summary judgment in a tort action against a former employer and co-employees based on the exclusivity provisions of the workers’ compensation statutes that arose around the time of employment termination.

Product Liability, Franklin P. Brannen Jr., Jacob E. Daly

Mercer Law Review

This Article surveys developments in Georgia product liability law between June 1, 2009 through May 31, 2010. It covers noteworthy cases decided during this period by the Georgia appellate courts, the United States Court of Appeals for the Eleventh Circuit, and the United States district courts located in Georgia.

Torts, Deron R. Hicks, Travis C. Hargrove

Mercer Law Review

This Article surveys recent developments in Georgia tort law between June 1, 2009 and May 31, 2010.

• PREMISES LIABILITY
• LIABILITY FOR ANIMAL ATTACKS
• DRAM SHOP ACT
• RESPONDEAT SUPERIOR LIABILITY
• DEFAMATION
• MEDICAL MALPRACTICE
• EMOTIONAL DISTRESS
• NEGLIGENCE

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …

Mainstreaming Privacy Torts, Danielle K. Citron

Faculty Scholarship

In 1890, Samuel Warren and Louis Brandeis proposed a privacy tort and seventy years later, William Prosser conceived it as four wrongs. In both eras, privacy invasions primarily caused psychic and reputational wounds of a particular sort. Courts insisted upon significant proof due to those injuries’ alleged ethereal nature. Digital networks alter this calculus by exacerbating the injuries inflicted. Because humiliating personal information posted online has no expiration date, neither does individual suffering. Leaking databases of personal information and postings that encourage assaults invade privacy in ways that exact significant financial and physical harm. This dispels concerns that plaintiffs might …

No One Ever Died From Copyright Infringement: The Inducement Doctrine's Applicability To Firearms Manufacturer Liability, Shane Wagman

Cardozo Law Review

No abstract provided.

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate …

Summary Of San Juan V. Psc Industrial Outsourcing, 126 Nev. Adv. Op. 35, Jonathan Winn

Nevada Supreme Court Summaries

The Supreme Court affirmed the district court’s summary judgment ruling in favor of PSC as to third party vicarious liability for the torts of an independent contractor. Specifically, the court held PSC, as hirer of independent contractor DTI, was not liable under the peculiar risk doctrine regardless of whether the independent contractor was incompetent or insolvent.

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Law & Economics Working Papers

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: They are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort’s substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law.

The problem is particularly acute for economists. They …

Leviathan Menacing The Gulf Coast: Catastrophic Consequences May Imperil The Rule Of Law, Beau James Brock

Buffalo Environmental Law Journal

No abstract provided.

Epstein's Razor, David G. Owen

Faculty Publications

Richard Epstein, over a long and distinguished career, has offered inspired insights into how a legal system should be framed to serve the goals of those it governs. In that pursuit, he has relentlessly applied a sharp logic - call it Epstein's Razor - to shave away the detritus of complexity and confusion that surround perplexing problems, leaving standing only truths unscathed by competition among ideas. Over decades of diverse writings on law and political theory, highlighted by his elegant Simple Rules for a Complex World, Professor Epstein offers a vision of law constructed on the view that simplicity in …

Distributive Justice Through Tort (And Why Sociolegal Scholars Should Care), Anita Bernstein

Faculty Scholarship

No abstract provided.

The First Amendment Degraded: Milkovich V. Lorain And A Continuing Sense Of Loss On Its 20th Birthday, Richard H. Weisberg

Articles

The article critiques the Supreme Court's decision in Milkovich v. Alabama, arguing that it undermines First Amendment protections by narrowing the distinction between fact and opinion in defamation cases. The Court's ruling, led by Chief Justice Rehnquist, held that statements implying false facts are actionable, even if framed as opinions. This decision, the article contends, reverses the constitutional logic of earlier precedents like New York Times Co. v. Sullivan, which trusted audiences to discern fact from opinion. The article warns that Milkovich erodes the First Amendment's faith in audience discernment, fostering a paternalistic judicial approach that stifles public debate.

Reaching Equilibrium In Tobacco Litigation, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal …

Why Brokers Are Not Investment Advisers: Erisa's Fiduciary Duty Only Applies To Those Who Provide Investment Advice To Pension Plans, Lydia S. Amamoo

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Business Of Suing: Determining When A Professional Plaintiff Should Have Standing To Bring A Private Enforcement Action, Brandon Murrill

William & Mary Law Review

No abstract provided.

Taxing Punitive Damages, Gregg D. Polsky, Dan Markel

Scholarly Works

There is a curious anomaly in the law of punitive damages. Jurors assess punitive damages in the amount that they believe will best “punish” the defendant. But, in fact, defendants are not always punished to the degree that the jury intends. Under the Internal Revenue Code, punitive damages paid by business defendants are tax deductible and, as a result, these defendants often pay (in real dollars) far less than the jury believes they deserve to pay.

To solve this problem of under-punishment, many scholars and policymakers, including President Obama, have proposed making punitive damages nondeductible in all cases. In our …

"What Do I Do About This Word, 'Unavoidable'?": Resolving Textual Ambiguity In The National Childhood Vaccine Injury Act, Jason Lafond

Michigan Law Review First Impressions

The quote in the title of this Essay comes from Justice Breyer, expressing his frustration with the language of section 22(b)(1) of the National Childhood Vaccine Injury Act. Justice Breyer made this comment during the October 12, 2010, oral argument in Bruesewitz v. Wyeth, Inc., a case about the availability of state tort claims based on vaccine design defects. The question before the Court was whether that section expressly preempts such claims against vaccine manufacturers "if the injury or death resulted from side effects that were unavoidable even though the vaccine was properly prepared and was accompanied by proper directions …

The Duty Paradox: Getting It Right After A Decade Of Litigation Involving The Risk Of Student Suicide, Daryl J. Lapp

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.