STU Scholarly Works (St. Thomas University)
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Proportional Liability: A Comprehensive Rule to Apportion Tort Damages Based on Probability
No full textIn many tort cases, actual causation may be uncertain; under existing law a jury may find by a preponderance of the evidence that but for causation was \u27proved when in fact it did not exist, or that but for causation was not \u27 proved when in fact it did exist. To remedy the inefficiencies and injustices arising from this problem, Professor Makdisi proposes in this Article that the tort system dispense with the element of causation in fact and require instead probable causation. Furthermore, as his analysis illustrates, when probable causation is proved, damages should then be allocated in proportion to the probability of causation. After explaining how this approach would better deter inefficiency and promote corrective justice, Professor Makdisi examines misconceptions about and abuses of the current system of proof by a preponderance of the evidence. The Article then identifies steps that courts and other legal scholars have already begun to take in the direction of probable causation. Finally, Professor Makdisi discusses the obstacles to determining an accurate probability of causation and concludes that proportional liability based on probable causation would be very similar to the common use of proportional liability found in other familiar areas of the law
How to Do a Perpetuities Problem
No full textThe most difficult aspect of the rule against perpetuities is figuring out a sure-fire way to determine whether an interest created in a conveyance is valid or invalid. The meaning of the rule itself is not hard to fathom. Whenever the interest might vest too remotely it is invalid, and it becomes possible to vest remotely if there is a chance that it could vest more than twenty-one years after everyone alive at the time of the conveyance has died. Whether the interest violates the rule against perpetuities is determined at the moment the conveyance creating the interest becomes effective. The problem is to demonstrate that, at the time of the conveyance, there exists or does not exist at least one possible future situation in which the interest could vest too remotely. It is a problem that has caused many a law student more than a few Gray hairs
Human Activities in Outer Space: A Framework for Decision-Making
No full textBook: Space Law: Views of The Future: A Compilation of Articles by A New Generation of Space Law Scholarshttps://scholarship.stu.edu/faculty_book_chapters/1034/thumbnail.jp
Workbook on Estates and Future Interests
No full texthttps://scholarship.stu.edu/faculty_books/1028/thumbnail.jp
Several Liability and the Effect of Settlement on Claim Reduction: Further Thoughts
No full textThomas R. Harris\u27 recent articles have provided valuable commentary on two important facets of Washington\u27s treatment of tort claims against joint tortfeasors. Washington\u27s two attempts at reform legislation, the first in the product liability reform legislation of 1981 and the second in the Tort Reform Act of 1986, struggled with two distinct but related problems: (1) where the plaintiff is himself at fault, should he still be entitled to joint and several liability; and (2) where a plaintiff settles with one of two or more joint tortfeasors, how much should his claim against the remaining tortfeasors be reduced? In both areas the later legislation provided a different answer from the earlier: (1) as to the question of joint and several liability, the legislature initially left intact the judiciary\u27s determination that the adoption of comparative negligence would not eliminate the plaintiff\u27s right to joint and several liability. But in the 1986 legislation joint and several liability is retained only when the plaintiff is not at fault, or when other circumstances (e.g., concert among the defendants, or certain environmental violations) make it appropriate. (2) As to the question of the amount of claim reduction resulting from a settlement with one of two or more joint tortfeasors, the legislature again changed its mind: in the 1981 Act a settlement with one defendant reduced the plaintiff\u27s claim against remaining defendants only by the amount actually received by the plaintiff. In the 1986 Act the legislature provided that the plaintiff\u27s claim would be reduced by the percentage share of liability attributable to the settling parties. At first blush both changes may appear noncontroversial-indeed they may appear (as presumably they did to the legislature) to be significant improvements over the 1981 Act. However, each has significant drawbacks. In fact, both measures represent an overcorrection of perceived defects. In the case of joint and several liability, the earlier approach placed all of the burden of a defendant\u27s insolvency upon the remaining defendants; by contrast, the newer legislation places all of the insolvency upon the plaintiff (unless he is free from fault or qualifies for the other exception to the rule of several liability). Similarly, in the case of claim reduction, the earlier approach could be faulted for providing the plaintiff too much of an incentive to settle, leaving remaining defendants holding the bag. By contrast, the 1986 legislation makes partial settlement at best unattractive and at worst an invitation to malpractice. This article suggests that there is a happy medium in both cases. As to the question of joint and several liability, the Uniform Comparative Fault Act, promulgated in 1977,7 provides for a proportionate sharing of the risk of insolvency, so that plaintiffs and defendants pay for a defendant\u27s insolvency according to their respective percentages of fault. In the area of claim reduction, the Commissioners have not been as successful, and it is to this question that the bulk of the article is addressed. After canvassing the three alternative formulations and noting the inadequacies of each, this article suggests a modification of the pro tanto or dollar reduction formula, so as to ensure that plaintiffs have adequate incentives both to settle and to settle fairly
Blessed Be The Ties That Bind: The Nexus Between Nationality and Territory
No full textPeople are, and remain, a cardinal base of power of national elites. In former times, they have been kept together by invocation and enforcement of group myths such as common ancestry, birth on common soil, or perpetual allegiance. The modern myth is the concept of nationality. The rise of this concept is closely related to the ascent of the nation-state. Nevertheless, it was but in the aftermath of the French Revolution that it found its way into the statute books and other authoritative pronouncements of decision-makers of territorial communities. Since then, it has been a favorite object of interest for both scholars and wielders of power, not surprisingly, because it goes to the essence of the relationship between the individual and the state. Battles over the meaning of nationality have raged since the birth of the concept. It has often been stated that nationality is a purely formal concept, \u27 with no essential legal consequences flowing from it. If that were true, no distinction under customary international law between the treatment of foreigners and that of citizens would exist - be it in the area of international migration or in any other field of legally regulated behavior. The purpose of this article is to test this assumption with respect to the movement of persons across borders on a broad international and comparative legal basis - to find out whether the outcomes of the world\u27s authoritative and controlling decision-making processes establish a definite link between nationality and home territory, and how that legal nexus is to be defined. The problem is delimited in Part I of the inquiry, its methodology explained in Part II. The empirical phenomenon of people\u27s movement across international borders is split into four legally relevant kinds of activities: the voluntary actions of entering or leaving a country, and the forced measures of expulsion and extradition. The following questions will be addressed, with special focus on potentially disparate treatment of foreigners and nationals: Is membership in a given territorial community the determining factor in deciding individual claims to access to territory (Part III)? Is it material in decisions regarding emigration (Part IV)? Is banishment outlawed (Part V)? And is extradition of nationals typically prohibited (Part VI)
Law School Orientation: Cases and Materials
No full texthttps://scholarship.stu.edu/faculty_books/1029/thumbnail.jp
Islamic Law Bibliography
No full textProfessor Makdisi presents a survey of the publications of primary sources of Islamic law (in Arabic) and secondary sources (in English and French). His introduction discusses the basic sources of the law and schools of legal doctrine, and provides a brief treatment of the development of Islamic law
The Status of Labor Arbitration Today: A Look at The Development of Labor Arbitration And The Labor Arbitrator\u27s Authority in The Collective Bargaining Contract/ Federal Statute Context
No full textThis paper proposes that the Court continue to expand the authority of the arbitrator as it did prior to 1974 and prescribe whatever rules the Court feels are necessary for the rendition of fair awards in the federal rights - collective bargaining rights, context. This expanded authority is necessitated by both the national labor policy favoring arbitration and the procedural and substantive difficulties an employee faces in attempting to prevail under a federal statute