Table of Contents

Presumption of Negligence

Alice Guerra, University of Bologna - Department of Economics, Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics, University of Hamburg - Institute of Law and Economics
Barbara Luppi, Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics, University of St. Thomas School of Law
Francesco Parisi, University of Minnesota - Law School, University of Bologna

Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights

Michael Lewis Wells, University of Georgia Law School

Courts in the Drone Age

Timothy M. Ravich, University of Central Florida, College of Health and Public Affairs

Domestic Courts and International Human Rights

Gabor Halmai, Eötvös Loránd University, School of Social Sciences

Growing Organs in the Lab: Tissue Engineers Confront Institutional 'Immune' Responses

Lars Noah, University of Florida - Fredric G. Levin College of Law

Complex Rules & Inconsistent Interpretation: Duty of Care and Causation in Collision Sports

Craig Dickson, Auckland University of Technology

Exit, Adversarialism, and the Stubborn Persistence of Tort

Nora Freeman Engstrom, Stanford Law School


TORTS & PRODUCTS LIABILITY LAW eJOURNAL

"Presumption of Negligence" Free Download
Minnesota Legal Studies Research Paper No. 15-08

ALICE GUERRA, University of Bologna - Department of Economics, Erasmus University Rotterdam (EUR) - Rotterdam Institute of Law and Economics, University of Hamburg - Institute of Law and Economics
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BARBARA LUPPI, Università degli studi di Modena e Reggio Emilia (UNIMORE) - Faculty of Business and Economics, University of St. Thomas School of Law
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FRANCESCO PARISI, University of Minnesota - Law School, University of Bologna
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This paper is about the incentive effects of legal presumptions. We analyze three interrelated effects of legal presumptions in a tort setting: (1) incentives to invest in evidence technology; (2) incentives to invest in care-type precautions; and (3) incentives to mitigate excessive activity levels. We suggest that the overlooked interaction between evidence and substantive tort rules is an important dimension that should inform the choice of legal presumptions. After considering the traditional factors that guide the choice of legal presumptions in tort law, we introduce the concept of “best discovery-bearer? to capture some of the factors that should guide the choice of legal presumptions. According to our analysis, the best-discovery-bearer criterion requires a shift of the burden of proof to the parties (a) who can most effectively invest in evidence technology; (b) whose precautions are more inelastic relative to discovery errors; and (c) who are not already burdened by the residual liability.

"Constitutional Remedies: Reconciling Official Immunity with the Vindication of Rights" Free Download
St. John's Law Review, Forthcoming
UGA Legal Studies Research Paper No. 2015-5

MICHAEL LEWIS WELLS, University of Georgia Law School
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A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, or fired people on account of protected speech, or deprived them of liberty or property without due process of law, or discriminated against them in violation of equal protection. Because these backward-looking suits bear some resemblance to ordinary tort law, the doctrine is often called “constitutional tort.?

This Article examines a well-settled and routine — but destructive and quite unnecessary — consequence of the interplay between the liability rule and the official immunity doctrine. Consider two plaintiffs, Alice and Bob, each of whom sues for damages under § 1983. Suppose that both plaintiffs lose, but for different reasons. Alice establishes a violation of her constitutional rights, but fails because the defendant successfully asserts official immunity. Bob cannot show that his rights were violated in the first place. Despite the difference between their cases, current Supreme Court doctrine directs that Alice and Bob be treated the same. Both go away empty-handed. Under the Court’s approach, the competing goals behind liability and immunity are balanced in the following way: On the one hand, the aim of constitutional tort law is to compensate the plaintiff and to deter violations of rights. But on the other side of the balance, official immunity carries enough weight to override the compensation and deterrence goals. Thus, the official’s successful immunity defense carries the same force as a successful defense on the merits. Both result in total victory for the defense.

In this Article, I argue for a different conception of constitutional tort law, in which it is recognized that Alice’s case differs fundamentally from Bob’s. The point is not to question official immunity, a doctrine that has broad support from the Supreme Court. My project is to reconcile official immunity with Alice’s legitimate claim for a remedy.

"Courts in the Drone Age" Free Download
Northern Kentucky Law Review, Forthcoming

TIMOTHY M. RAVICH, University of Central Florida, College of Health and Public Affairs
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Few subjects encapsulate legal informatics more than “drones.? Aviation is nothing new in public, military, and private settings, but the use of unmanned aerial vehicles (“UAVs?) for civic, law enforcement, national security, and commercial purposes is novel. This is not because UAV technology necessarily offers anything groundbreaking in the way of aeronautics or engineering; rather, UAVs are transformational information systems in terms of digital forensics. The range of intelligence, surveillance, and reconnaissance (“ISR?) gathered by sensor suites and software solutions deployed on UAV platforms seems limitless. This boundless use extends to legal processes, where the job of litigants and triers of fact could be eased and optimized through the use of drone-acquired evidence, for example high-definition video of accident or crime scenes. Current federal and state laws inhibit the collection, storage, and use of data gathered and delivered by UAVs from finding their way into criminal court hearings, civil depositions and mediations, and trials, however. A robust system of legal rules and practices designed to ensure the reliable, resilient, and uncompromised collection and use of UAV data is imperative.

This article is the first to examine what digital information obtained by unmanned, remotely-piloted or optionally manned aviation machines means under the rules of evidence and discovery in civil and criminal cases. This analysis combines an interdisciplinary review of drone technology with the study of doctrinal legal subject matter such as tort, property, and criminal law, together with notions of personal and digital privacy under state law and the United States Constitution. While the law obviously lags technology generally and in the arena of drones specifically, this article concludes that current procedural and evidentiary rules are elastic and must be stretched to accommodate the latest advance in information technology.

"Domestic Courts and International Human Rights" Free Download
in Sage Handbook of Human Rights (Eds. A. Mihr and M. Gibney), 2014. 749-767.

GABOR HALMAI, Eötvös Loránd University, School of Social Sciences
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The main focus of this chapter is the direct use of international human rights law by domestic courts deciding both criminal and civil cases on the basis of universal jurisdiction. Before discussing the historical development and major interpretative paradigms of this most important way to implement human rights, we shortly review the more indirect approach, when courts while deciding domestic cases use international human rights as a source of constitutional interpretation. The chapter concludes with the possible future directions of universal jurisdiction, as a perspective of the globalization of both criminal and civil accountability.

"Growing Organs in the Lab: Tissue Engineers Confront Institutional 'Immune' Responses" Free Download
Jurimetrics, Vol. 55, No. 3, 2015

LARS NOAH, University of Florida - Fredric G. Levin College of Law
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In order to ease chronic shortages of transplantable human organs as well as circumvent the immune response of recipients, tissue engineers have seeded scaffolds with patients’ stem cells that develop into functional replacements. Several individuals already have benefitted from lab-grown bladders and tracheas, and scientists have made promising advances in laboratory animals with far more complex organs such as hearts and kidneys. As this form of regenerative medicine moves from fantasy to reality, it will pose various puzzles for legal institutions. For instance, does tissue engineering merely amount to an innovative medical procedure subject to state regulation, or instead does it qualify as an interstate commercial activity governed by federal law? Will the outputs of this novel technique closely enough resemble human organs so that the Health Resources and Services Administration enjoys primary authority, or instead will they qualify as therapeutic products regulated by the Food and Drug Administration (FDA)? If subject to the supervision of the latter agency, then would lab-grown organs face licensure as biologics or medical devices, and how exactly would the FDA apply such requirements to tailor-made items? Collateral questions will arise in connection with tort law, payment, and patent protection. Unless existing systems for controlling medical technologies develop satisfactory answers to such concerns, they may create roadblocks to the realization of the full potential of tissue engineering.

"Complex Rules & Inconsistent Interpretation: Duty of Care and Causation in Collision Sports" Free Download
Sports Law eJournal, Bond University, 2015

CRAIG DICKSON, Auckland University of Technology
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Developing skill levels, greater emphasis on player safety and the invasive impact of technology have all helped usher in progressively complex rule amendments to many sports – which has made the adjudication of those sports also increasingly complicated. While a complete rewrite of the rule book may not be the answer, it is clear that the rules under which many sports now operate have become quite convoluted – suffering from numerous ad hoc add-ons and intricate amendments at the expense of simplicity and clarity.

This is particularly true of the so-called collision sports, where quite appropriately, the sport’s governing bodies have instituted ever greater protections within the rules to try and increase the levels of safety of the participants. When such rules are poorly construed or misinterpreted however, the integrity of the sport is damaged – an impact that is magnified when the safety rules are inconsistently applied.

Using incidents from the just concluded Rugby Championship, this paper will utilise a fault based, breach of duty of care reasoning “borrowed? from the tort of negligence to argue that while entirely well-intentioned, game ‘safety’ rules cannot all be enforced as absolute liability offences. Unless an absence of fault rationale is properly implemented, thereby permitting breaches of some safety rules to be adjudged as strict liability offences, the coherence and welfare objectives of those rules is compromised. Furthermore, the long-term viability of collision sports becomes questionable.

"Exit, Adversarialism, and the Stubborn Persistence of Tort" Free Download
J. Tort Law (2015)

NORA FREEMAN ENGSTROM, Stanford Law School
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Serious tort reformers have long tried to divert certain claims from the tort system into no-fault or “replacement? regimes where, it is said, compensation can be more easily, expeditiously, predictably, and simply delivered. Yet while many continue to champion no-fault’s expansion, surprisingly few have stopped to ask how America’s various no-fault experiments, in place for over a century, have thus far fared. Taking up that challenge, this Essay, written in memory of no-fault pioneer Jeffrey O’Connell, canvasses America’s four boldest experiments with no-fault legislation. The investigation — of workers’ compensation, automobile no-fault, the Vaccine Injury Compensation Program, and birth injury funds in Florida and Virginia — reveals that all four of our most ambitious no-fault experiments have, in significant respects, failed. Seepage from no-fault regimes and into the tort system has been a persistent problem. Further, even when compensation has been provided within existing no-fault mechanisms, the mechanisms have become bogged down by adversarialism, marked by longer times to decision and increased combativeness, attorney involvement, and reliance on formal adjudicatory procedures. Showing how and why no-fault has repeatedly fallen short, this Essay seeks to complicate conventional wisdom concerning no-fault’s ostensible advantages. And, it seeks to honor O’Connell’s proud legacy, for only by identifying what’s gone wrong, might we start anew on a path toward the creation of better and more resilient reforms.

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Torts & Products Liability Law eJournal

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