Torts Commons^™

Medical Malpractice Liability Crisis Or Patient Compensation Crisis?, Kathryn Zeiler

Faculty Scholarship

Tort reform has been a hot topic among those interested in assessing whether and how well the tort system aids injured plaintiffs in achieving civil justice. The debate has been especially heated when it comes to medical malpractice liability. Until recently, rhetoric about the liability system and its relationship to insurance markets and physician supply dominated tort reform debates. While claims made by both proponents and opponents can seem intuitive, they are often unsubstantiated. In recent years, however, academics and others have acquired or created datasets to perform analyses to enhance our understanding of the relationship between the tort system …

Pampasan Kepada Mangsa Rogol Di Malaysia Menurut Perspektif Syariah., Rozilawati Mat Yacob

Student Works (2010-2019)

The statistic of rape cases in Malaysia is obviously increasing since the year 2000-2006. This phenomenon is becoming more serious over these years particularly with increasing incidents of rape and murder cases. The rape tragedy definitely left the victim with many effects. It is timely to make a research about rape as a brutal crime and also the compensation for victims in Malaysia. The main objective of this research is to suggest a rape compensation system to be practiced in Malaysia, by looking at the principles laid down by Islam as well as by looking to the practices in Western …

Introduction To Symposium: Reasoning From Literature, Jessica Silbey

Faculty Scholarship

The “literary turn” in legal studies manifests in many ways in our legal discipline and practice. Be it with the birth of the study of law and literature in the 1980s, the growing attention to narrative theory and storytelling in the law in the 1990s, or the “cultural turn” in legal studies in the 21st century (as some scholars have called the cultural analysis of law), reasoning from literature seems commonplace. And yet it is still marginalized in legal studies as interdisciplinary, not “really law,” and lacking the core persuasive power that legal argumentation and doctrinal analysis do. This Symposium …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

Publications

The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution.

One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

Torts As Wrongs, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them. Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that …

Free Speech At What Cost?: Snyder V. Phelps And Speech-Based Tort Liability, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

It is always a hard case when fundamental interests collide, but the Fourth Circuit’s decision in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert. granted, 130 S. Ct. 1737 (2010), tilts doctrine too far in the direction of free speech, upsetting the Supreme Court’s careful weighing of interests that takes into account both the need for robust political debate and the need to protect private individuals from personal abuse. Where speech is directed at a private individual, especially one unwilling to hear but unable to escape the speaker’s message, the elements of the emotional distress claim more than …

Medical Malpractice Liability Crisis Or Patient Compensation Crisis?, Kathryn Zeiler

Georgetown Law Faculty Publications and Other Works

This Article is organized as follows. Part II summarizes the common rhetoric in tort reform debates that places the blame for rising premiums on the liability system and touts tort reform as the cure-all for ailing insurance markets. It then summarizes empirical results, produced using Texas closed claims data and other data, which suggest not only that Texas tort reform advocates wrongly placed blame on the liability system, but also that noneconomic damages caps passed in 2003 have caused more harm than good. Part III describes results that suggest that the widely used tactic of pointing to jumbo jury verdicts …

Damned For Their Judgment: The Tort Liability Of Standard Development Organizations, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.

Of Coase, Calabresi, And Optimal Tax Liability, Kyle D. Logue, Joel Slemrod

Articles

The Article proceeds as follows. Part II offers a primer on the Coase Theorem, beginning with the classic case of neighbor externalizing on neighbor (farmer and rancher), and it explains the basic invariance propositions. Part III shifts the focus to Coasean situations involving buyers and sellers in a market or contractual relationship, buyers and sellers whose market interactions cause harm to third parties. Using supply-and-demand diagrams, we illustrate (in a new way) some of the most basic findings of the economic analysis of law, including both the Coasean invariance and efficiency propositions and the Calabresian least-cost avoider idea. Also in …

The Multiple Common Law Roots Of Charitable Immunity: An Essay In Honor Of Richard Epstein's Contributions To Tort Law, Jill R. Horwitz

Articles

Professor Epstein has long promoted replacing tort-based malpractice law with a new regime based on contracts. In Mortal Peril, he grounded his normative arguments in favor of such a shift in the positive, doctrinal history of charitable immunity law. In this essay, in three parts, I critique Professor Epstein’s suggestion that a faulty set of interpretations in charitable immunity law led to our current reliance on tort for malpractice claims. First, I offer an alternative interpretation to Professor Epstein’s claim that one group of 19th and early 20th century cases demonstrates a misguided effort to protect donor wishes. Rather, I …

Two Masters, Carl E. Schneider

Articles

American government rests on the principle of distrust of government. Not only is power within the federal government checked and balanced. Power is divided between the federal government and the state governments. So what if a state law conflicts with a federal law? The Constitution says that the "Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; ... any Thing in the ... Laws of any State to the Contrary notwithstanding." Sometimes the conflict between federal and state law is obvious and the Supremacy Clause is easily applied. But sometimes ...

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

Articles

The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury And Causation, David M. Engel

Journal Articles

Empirical studies of the tort law system suggest that "lumping, " or decisions by victims to do without adequate remedies, should be regarded as the predominant response to injury in American society and elsewhere. Yet research on lumping remains conceptually impoverished and gives insufficient attention to the culturalftameworks victims use to interpret their experiences and determine their responses. This Article presents the stories of injury victims in Thailand and compares their common-sense understandings of torts and tort law to those of injured Americans. It argues that analyses of lumping in America as well as Asia should take into account the …

Blast Off? — Strict Liability’S Potential Role In The Development Of The Commercial Space Market, Mark Flores

Richmond Journal of Law & Technology

The sun rises over the mountains in Southern New Mexico and the windows of Spaceport America blind those looking on at the terminal. A sudden boom shakes the ground and a plane unlike any other takes off toward the sky, leaving Spaceport America in the distance.

The Easy Case For Products Liability: A Response To Polinsky & Shavell, Benjamin C. Zipursky, John C.P. Goldberg

Faculty Scholarship

In their article “The Uneasy Case for Product Liability,” Professors Polinsky and Shavell assert the extraordinary claim that there should be no tort liability - none at all - for injuries caused by widely-sold products. In particular, they claim to have found convincing evidence that the threat of tort liability creates no additional incentives to safety beyond those already provided by regulatory agencies and market forces, and that tort compensation adds little or no benefit to injury victims beyond the compensation already provided by various forms of insurance. In this response, we explain that, even on its own narrow terms, …

Doing Wrong Without Creating Harm, Lawrence M. Solan, Joseph Sanders, Matthew B. Kugler, John M. Darley

Faculty Scholarship

No abstract provided.

Iqbal And Supervisory Immunity, Kit Kinports

Faculty Scholarship

Prior to the Supreme Court’s 2009 decision in Ashcroft v. Iqbal, the federal courts generally acknowledged that high-ranking government officials could be held liable for the constitutional injuries inflicted by their subordinates, though they differed on the appropriate standard of supervisory liability. In Iqbal, the Supreme Court called this case law into question, holding that constitutional tort liability hinges on proof that each defendant, “through the official’s own individual actions, has violated the Constitution.” The Court’s cursory treatment of this issue, without the benefit of briefing or oral argument, was based entirely on the misguided assumption that the doctrine of …

As Long As "It" Is Not Counterfeit: Holding Ebay Liable For Secondary Trademark Infringement In The Wake Of Lvmh And Tiffany Inc., Ellie Mercado

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Defending The Majoritarian Court, Amanda Frost

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Coordinating Sanctions In Torts, Kyle D. Logue

Articles

This Article begins with the standard Law and Economics account of tort law as a regulatory tool or system of deterrence, that is, as a means of giving regulated parties the optimal ex ante incentives to minimize the costs of accidents. Building on this fairly standard (albeit not universally accepted) picture of tort law, the Article asks the question how tort law should adjust, if at all, to coordinate with already existing non-tort systems of regulation. Thus, if a particular activity is already subject to extensive agency-based regulation (whether in the form of command-and-control requirements or in the form of …