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Tort Litigation (tort + litigation)

Distribution by Scientific Domains
Law and Criminology66%

Selected Abstracts

Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor,

LAW & POLICY, Issue 2 2004
ALLAN KANNER
This paper proposes to explore the current and prospective role of equitable theories and remedies in toxic tort litigation. The argument is for an unjust enrichment remedy in certain property pollution cases. The idea is to remove the monetary incentive for polluting economically depressed areas. Two specific areas of investigation come immediately to mind. First, courts have already embraced equitable remedies to address pollution damages. Under Ayers and its progeny, many states have allowed the equitable remedy medical monitoring. What is important to understand is how legal relief for increased risk claims would have been inadequate and also the propriety of finding an equitable approach. Second, moving from personal injury to real property damage claims, we see a similar opportunity for use of equitable relief under an unjust enrichment theory. Currently, there is much debate about the propriety of restoration damages as opposed to fair market value (FMV) damages for the landowners whose property is damaged by the pollution of another. Each approach has various strengths and weaknesses. A better approach might be to use unjust enrichment on a law and economics basis as a remedy to force polluters to internalize the cost of pollution. For instance, take a polluter who pollutes the neighboring environs in lieu of paying one million dollars in disposal and storage costs. Assume the neighboring properties are only worth three hundred thousand dollars on a FMV approach. Assume further that restoration costs are ten million dollars, but that the relevant government agency would accept a natural attenuation clean-up approach. How should the remedy be set, and should one consider allowing a de facto pollution easement? [source]

In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility

LAW & SOCIAL INQUIRY, Issue 1 2009
Jeb Barnes
A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health crisis was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy-making process. Indeed, once one considers informational and political constraints, as well as how the branches of government can fruitfully share policy-making functions, the asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power. [source]

Equity in Toxic Tort Litigation: Unjust Enrichment and the Poor,

LAW & POLICY, Issue 2 2004
ALLAN KANNER
This paper proposes to explore the current and prospective role of equitable theories and remedies in toxic tort litigation. The argument is for an unjust enrichment remedy in certain property pollution cases. The idea is to remove the monetary incentive for polluting economically depressed areas. Two specific areas of investigation come immediately to mind. First, courts have already embraced equitable remedies to address pollution damages. Under Ayers and its progeny, many states have allowed the equitable remedy medical monitoring. What is important to understand is how legal relief for increased risk claims would have been inadequate and also the propriety of finding an equitable approach. Second, moving from personal injury to real property damage claims, we see a similar opportunity for use of equitable relief under an unjust enrichment theory. Currently, there is much debate about the propriety of restoration damages as opposed to fair market value (FMV) damages for the landowners whose property is damaged by the pollution of another. Each approach has various strengths and weaknesses. A better approach might be to use unjust enrichment on a law and economics basis as a remedy to force polluters to internalize the cost of pollution. For instance, take a polluter who pollutes the neighboring environs in lieu of paying one million dollars in disposal and storage costs. Assume the neighboring properties are only worth three hundred thousand dollars on a FMV approach. Assume further that restoration costs are ten million dollars, but that the relevant government agency would accept a natural attenuation clean-up approach. How should the remedy be set, and should one consider allowing a de facto pollution easement? [source]

In Defense of Asbestos Tort Litigation: Rethinking Legal Process Analysis in a World of Uncertainty, Second Bests, and Shared Policy-Making Responsibility

LAW & SOCIAL INQUIRY, Issue 1 2009
Jeb Barnes
A central question in American policy making is when should courts address complex policy issues, as opposed to defer to other forums? Legal process analysis offers a standard answer. It holds that judges should act when adjudication offers advantages over other modes of social ordering such as contracts, legislation, or agency rule making. From this vantage, the decision to use common law adjudication to address a sprawling public health crisis was a terrible mistake, as asbestos litigation has come to represent the very worst of mass tort litigation. This article questions this view, arguing that legal process analysis distorts the institutional choices underlying the American policy-making process. Indeed, once one considers informational and political constraints, as well as how the branches of government can fruitfully share policy-making functions, the asbestos litigation seems a reasonable and, in some ways, exemplary, use of judicial power. [source]

Adjudicating the Salvadoran Civil War: Expectations of the Law in Romagoza

POLAR: POLITICAL AND LEGAL ANTHROPOLOGY REVIEW, Issue 2 2008
Jonah Rubin
This article analyzes the experiences of Neris Gonzalez, one of the three Salvadoran plaintiffs who brought a successful lawsuit against the former heads of the Salvadoran military for the torture she suffered in 1979. In analyzing the presentation of the case, I focus on the specific transformations that political and historical disputes undergo as they are subsumed into the formal rules of U.S. tort litigation. Further, I pay special attention to the ways legal narratives are designed specifically to appeal to a jury comprising 10 lay U.S. citizens, who have no familiarity with Salvadoran history. I demonstrate how torts litigation requires a depoliticization of the plaintiff and a personalization of history. I argue that, due to the form of the court fails in addressing the historical disputes in question. [source]