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Iqbal And Supervisory Immunity, Kit Kinports 2010 Penn State Law

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 …


Blast Off? — Strict Liability’S Potential Role In The Development Of The Commercial Space Market, Mark Flores 2010 University of Richmond

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 Impact Of Wyeth V. Levine On Fda Regulation Of Prescription Drugs, Richard C. Ausness 2010 University of Kentucky College of Law

The Impact Of Wyeth V. Levine On Fda Regulation Of Prescription Drugs, Richard C. Ausness

Law Faculty Scholarly Articles

On March 4, 2009, the United States Supreme Court decided Wyeth v. Levine. In that case, the Court concluded that the plaintiff's failure to warn claim against the makers of the drug Phenergan was not impliedly preempted by the Food, Drug and Cosmetic Act (FDCA). In doing so, the Court rejected the argument of the U.S. Food and Drug Administration (FDA) that tort claims of this nature stand as an obstacle to federal regulatory objectives. This article evaluates the Court's opinion in Wyeth and examines that decision's impact on subsequent litigation in the area of prescription drug labeling. In …


Knock It Off: An Analysis Of Trademark Counterfeit Goods Regulation In The United States, France, And Belgium, Kate Goldwasser 2010 Benjamin N. Cardozo School of Law

Knock It Off: An Analysis Of Trademark Counterfeit Goods Regulation In The United States, France, And Belgium, Kate Goldwasser

Cardozo Journal of International and Comparative Law

The note examines the legal standards for online platforms' liability regarding the sale of counterfeit goods in the US, France, and Belgium. It highlights the discrepancies in how each country applies contributory liability to platforms like eBay and advocates for consistent international regulations to address the growing issue of online counterfeit sales.


Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury And Causation, David M. Engel 2010 University at Buffalo School of Law

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 …


The Curious Case Of Directors' And Officers' Liability For Supervision And Management: Exploring The Intersection Of Corporate And Tort Law, Martin Petrin 2010 American University Washington College of Law

The Curious Case Of Directors' And Officers' Liability For Supervision And Management: Exploring The Intersection Of Corporate And Tort Law, Martin Petrin

American University Law Review

No abstract provided.


Wyeth V. Levine: What Does It Mean And Where Do Pharmaceutical Companies Go From Here, Clay Landa 2010 University of Richmond

Wyeth V. Levine: What Does It Mean And Where Do Pharmaceutical Companies Go From Here, Clay Landa

Law Student Publications

Part II of this paper analyzes the history and background of federal preemption to give context to the current environment after Wyeth. Part III analyzes the Supreme Court‘s decision in Wyeth, holding that the FDCA and corresponding regulations do not preempt state tort claims. Finally, Part IV discusses and analyzes what drug makers may do now to continue to produce and market pharmaceuticals profitably while limiting their liability for state tort claims.


Making European Tort Law: The Game And Its Players, Marta Infantino 2010 University of Trieste, Italy

Making European Tort Law: The Game And Its Players, Marta Infantino

Cardozo Journal of International and Comparative Law

In the last several decades, building a common European tort law has become a primary goal for many European institutions and research groups. On the one hand, EU institutions frequently highlight the need to simplify the current diversity in European tort law, and try to achieve this goal by injecting-so far quite incoherent-pieces of legislation into the European legal framework. On the other hand, many research groups aim to enhance the Europanization process through means that are much differentiated one to the other. Some of these groups (e.g., the European Group on Tort Law and the Study Group on a …


What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football, Erika A. Diehl 2010 Cleveland State University

What's All The Headache: Reform Needed To Cope With The Effects Of Concussions In Football, Erika A. Diehl

Journal of Law and Health

In order to effectively manage this public health concern, it is imperative to gain an understanding of the issues surrounding head injuries in sporting events. This Note will discuss the increasing frequency and dangers of concussions in amateur and professional football. It will suggest that athletes, schools, coaches, and doctors must become more educated on the causes and dangers of concussions in order to ensure the safety of participants. In order to do so, this Note introduces a medical overview of concussions, while briefly outlining the diagnosis, long-term effects, and management of concussions. Part III discusses the legal theories athletes …


Nfl: National Football League Or No Free Logos?, Kathryn Kokoczka 2010 Loyola University Chicago, School of Law

Nfl: National Football League Or No Free Logos?, Kathryn Kokoczka

Public Interest Law Reporter

No abstract provided.


United States Ex Rel. Drc, Inc. V. Custer Battles, Llc: A Brutal Battle Foreshadowing The Future Of False Claims Act Litigation, Kathleen H. Harne 2010 University of Maryland Francis King Carey School of Law

United States Ex Rel. Drc, Inc. V. Custer Battles, Llc: A Brutal Battle Foreshadowing The Future Of False Claims Act Litigation, Kathleen H. Harne

Maryland Law Review Online

No abstract provided.


The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt 2010 Indiana University Maurer School of Law

The Unappreciated Inportance, For Small Business Defendants, Of The Duty To Settle, Robert H. Heidt

Articles by Maurer Faculty

No abstract provided.


Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove 2010 Washington University in St. Louis School of Law

Prosser's Privacy Law: A Mixed Legacy, Neil M. Richards, Daniel J. Solove

Scholarship@WashULaw

This Article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy …


The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards 2010 Washington University in St. Louis School of Law

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …


Doing Wrong Without Creating Harm, Lawrence M. Solan, Joseph Sanders, Matthew B. Kugler, John M. Darley 2010 Brooklyn Law School

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

Faculty Scholarship

No abstract provided.


As Long As "It" Is Not Counterfeit: Holding Ebay Liable For Secondary Trademark Infringement In The Wake Of Lvmh And Tiffany Inc., Ellie Mercado 2010 Benjamin N. Cardozo School of Law

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.


The Heterogeneity Of The Value Of Statistical Life: Introduction And Overview, W. Kip Viscusi 2010 Vanderbilt University Law School

The Heterogeneity Of The Value Of Statistical Life: Introduction And Overview, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The refinement in worker fatality risk data used in hedonic wage studies and evidence from new stated preference studies have facilitated the exploration of the heterogeneity of the value of statistical life (VSL). Although the median VSL estimate for workers is $7-$8 million, the VSL varies considerably within the worker population. New estimates of the income elasticity of VSL are 1.0 or above, which are consistent with theoretical models linking VSL to the coefficient of relative risk aversion. The specific relationship between VSL and risk aversion is, however, more complex than previously understood. Age differences in VSL are substantial, with …


Punitive Damages By Numbers: Exxon Shipping Co. V. Baker, Joni Hersch, W. Kip Viscusi 2010 Vanderbilt University Law School

Punitive Damages By Numbers: Exxon Shipping Co. V. Baker, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

The U.S. Supreme Court decision in Exxon Shipping Co. v. Baker is a landmark that establishes an upper bound ratio of punitive damages to compensatory damages of 1:1 for maritime cases, with potential implications for other types of cases as well. This article critiques the Court’s reliance on the median ratio of punitive to compensatory damages in samples of verdicts to set an upper bound for punitive damages awards. Our critique of the approach draws on the properties of statistical distributions and a new analysis of cases with punitive damages awards. The Court’s conclusion that a 1:1 ratio establishes a …


Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks 2010 Southern Methodist University, Dedman School of Law

Square Peg In A Round Hole: Government Contractor Battlefield Tort Liability And The Political Question Doctrine, Chris Jenks

Faculty Journal Articles and Book Chapters

Recent assertions of the political question doctrine by battlefield contractor defendants in tort litigation have brought new life to the doctrine while raising new questions. The lawsuits stem from incidents in both Iraq and Afghanistan and include plaintiffs ranging from local nationals suing contract interrogators and interpreters, to contract employees suing another contractor following insurgent attacks, to U.S. service members suing contractors after vehicle and airplane crashes. The lawsuits involve tort claims, which on their face do not conjure up images of a constitutional power struggle, but in at least fifteen cases thus far contractor defendants have asserted the political …


Recalibrating The Legal Risks Of Cross-Border Health Care, Nathan Cortez 2010 Southern Methodist University, Dedman School of Law

Recalibrating The Legal Risks Of Cross-Border Health Care, Nathan Cortez

Faculty Journal Articles and Book Chapters

The nascent scholarship surrounding "medical tourism" assumes, without much scrutiny, that foreign jurisdictions provide few legal remedies to patients, instead focusing on whether U.S. patients can sue in U.S. courts. This article tests that assumption by examining whether patients might recover adequate compensation not only in the United States, but in four common destinations: India, Thailand, Singapore, and Mexico. I analyze how each jurisdiction handles medical malpractice complaints and discuss the unique obstacles patients might face when navigating each of these systems. I conclude that U.S. patients will struggle to recover remotely adequate compensation in each of these jurisdictions. This …


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