Reviewing the law reviews.

AuthorYoungdale, Elizabeth M.
PositionBibliography

Law Review Highlights:

Jurisdiction and the Internet

The pervasiveness of the Internet in daily life has challenged traditional views of considering jurisdictional issues in legal matters. Concepts of territorial borders have changed within the context of the World Wide Web. The question courts are wrestling with is how those changes effect determinations of jurisdiction when looking at minimum contacts and forum states. There is still no uniform determination among nations or even circuits within the U.S. on how best to make determinations of jurisdiction when dealing with injury on the Internet. Some courts have used settled standards to rule on jurisdictional issues, while others have held that the Internet provides a unique set of considerations that take it outside the traditional rules for deciding jurisdiction. Several articles in this bibliography analyze the issues of jurisdiction and the Internet.

In his article, You Can't Always' Use the Zippo Code." The Fallacy of a Uniform Theory of Internet Personal Jurisdiction, (1) Dennis Yokoyama examines the current state of Internet jurisdiction jurisprudence. Yokoyama maintains that principles governing jurisdiction on the Internet should continue to follow the traditional model of personal jurisdiction, rather than separating Internet jurisdiction from those examples. He does this by first looking at decisions that were on the forefront of Internet personal jurisdiction that spawned a number of conflicting judicial decisions and commentary. The article also considers United States Supreme Court cases that articulate the traditional principles governing general and specific jurisdiction before contrasting those ideals with cases regarding Internet jurisdiction specifically. While Yokoyama believes that trying to state a uniform test encompassing the entirety of the Internet is not possible, he attempts to provide a framework for evaluating Internet jurisdiction issues that will be practical and effective.

A second article, Caveat E-Emptor: Solutions to the Jurisdictional Problem of Internet Injury (2) by John J. Schulze addresses jurisdictional issues generally raised in dealing with the Internet and proposes solutions for dealing with those problems. He examines three current jurisdictional theories: "totality of contacts" theory, "effects" test, "deliberate and continuous dissemination" approach. Schulze considers jurisdiction in an international law context, not only looking at the approaches of individual countries, but also reviewing the EU E-Commerce Directive and its approach to Internet culpability. Additionally, the article looks at forum selection clauses and their impact on cyber-jurisdiction issues. Finally, the author attempts to develop possible solutions for international jurisdiction issues that are raised by the article.

Jurisdiction in Internet Libel Cases (3) by Eric Barendt looks at jurisdiction specifically with respect to the tort of libel. The article starts with an analysis of the Australian case Dow Jones & Co. v. Gutnik (4) where the Court found that there should not be special rules adopted for the Internet because the Internet does not necessarily provide for a wider dissemination of information than other global broadcasting technologies. This is a different conclusion than many U.S. courts have reached. Courts in the U.S. often focus on whether or not the defendant had "targeted" the communication to readers in the forum state through use of the Internet. The author suggests that while there is no real reason to treat the Internet as presenting a completely unique set of circumstances when determining jurisdiction, courts should also be willing to recognize that there are some unique features to communication over the Internet. Courts should, therefore, exercise more discretion when it is clear that the defendant could not foresee harm to a plaintiff in a foreign forum.

The following list is a selective bibliography of current law review literature thought to be of interest to civil defense counsel.

U.S. and International

Damages

Richard Abel, General Damages Are Incoherent, Incalculable, Incommensurable, and Inegalitarian (But Otherwise a Great Idea), 55 DEPAUL L. REV. 253 (2006).

Ronen Avraham, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 NW. U. L. REV. 87 (2006).

Roderick Bagshaw, Monetary Remedies in Public Law--Misdiagnosis and Misprescription, 26 LEGAL STUDS. 4 (2006).

Dato' P Balan, Damages for Personal Injuries Causing Death: A Critical Survey, 31 J. MALAYSIAN & COMP. L. 45 (2004). Journal of Malaysian & Comparative Law, Faculty of Law, University of Malaya, Lembah Pantai, 50603 Kuala Lumpur, Malaysia

Giovanni Comande, Towards a Global Model for Adjudicating Personal Injury Damages: Bridging Europe and the United States, 19 TEMP. INT'L & COMP. L.J. 241 (2005).

Rima N. Daniels, Monetary Damages in Mandatory Classes: When Should Opt-Out Rights Be Allowed?, 57 ALA. L. REV. 499 (2005).

Stephen Daniels & Joanne Martin, The Texas Two-Step: Evidence on the Link Between Damage Caps and Access to the Civil Justice System, 55 DEPAUL L. REV. 635 (2006).

Daniel D. Doyle & Jennifer A. Fletcher, OOIDA Class-Action Damages and Other Relief, 32 TRANSP. L.J. 199 (2005).

Anthony Duggan, Exemplary Damages in Equity: A Law and Economics Perspective, 26 OXFORD J. LEG. STUDS. 303 (2006).

E. Martin Estrada, Pushing Doctrinal Limits: The Trend Toward Applying Younger Abstention to Claims for Monetary Damages and Raising Younger Abstention Sua Sponte on Appeal, 81 N.D.L. REV. 475 (2005).

Blaine Evanson, Note, Due Process in Statutory Damages, 3 GEO. J.L. PUB. POL'Y 601 (2005).

Erik S. Fisk, Stigma Damages in Construction Defect Litigation: Feared by Defendants, Championed by Plaintiffs, Awarded by (Almost) No Courts--What Gives?, 55 DEF. L.J. 73 (2006).

George Clemon Freeman, Jr. & Makram B. Jaber, Further Progress in Defining Constitutional Constraints on Punitive Damages and Other Monetary Punishments,, 61 Bus. LAW. 517 (2006).

Timothy R. Freeman, Comment, Compensatory or Punitive Damages? Tarr v. Ciasulli Blurs the Distinction, 36 SETON HALL L. REV. 1285 (2006).

Mark A. Geistfeld, Due Process and the Determination of Pain and Suffering Tort Damages, 55 DEPAUL L. REV. 331 (2006).

John C. P. Goldberg, Two Conceptions of Tort Damages: Fair v. Full Compensation, 55 DEPAUL L. REV. 435 (2006).

John Y. Gotanda, Awarding Damages Under the United Nations Convention on the International Sale of Goods: A Matter of Interpretation, 37 GEO. J. INT'L L. 95 (2005).

Michael D. Green, The Intersection of Factual Causation and Damages, 55 DEPAUL L. REV. 671 (2006).

Sara D. Guardino & Richard A. Daynard, Punishing Tobacco Industry Misconduct: The Case for Exceeding a Single Digit Ratio Between Punitive and Compensatory Damages, 67 U. PITT. L. REV. 1 (2005).

Edward J. Hickling, et al., The Psychological Impact of Litigation: Compensation Neurosis, Malingering, PTSD, Secondary Traumatization, and Other Lessons from MVAs, 55 DEPAUL L. REV. 617 (2006).

Rachel M. Janutis, Fair Apportionment of Multiple Punitive Damages, 75 MISS. L.J. 367 (2006).

Jenny Miao Jiang, Comment, Whimsical Punishment: The Vice of Federal Intervention, Constitutionalization, and Substantive Due Process in Punitive Damages Law, 94 CAL. L. REV. 793 (2006).

Kelly Kotur, An Extreme Response or a Necessary Reform ? Revealing How Caps on Noneconomic Damages Actually Affect Medical Malpractice Victims and Malpractice Insurance Rates, 108 W. VA. L. REV. 873 (2006).

Elissa Levy, Note, The Health Act's FDA Defense to Punitive Damages: A Gift to Drug Makers or to the Public?, 74 FORDHAM L. REV. 2425 (2006).

Qiao Liu, Claiming Damages upon an Anticipatory Breach: Why Should an Acceptance Be Necessary?, 25 LEGAL STUDS. 559 (2005).

Keith P. McManus, Civil Liability for Wartime Environmental Damage: Adapting the United Nations Compensation Commission for the Iraq War, 33 B.C. ENVTL. AFFS. L. REV. 417 (2006).

James McMillan, Comment, Contributory Negligence and Statutory Damage Limits--An Old Alternative to a Contemporary Movement? 42 IDAHO L. REV. 269 (2005).

Michael R. Nelson & C. Theresa Barone, Controlling the Scope of Deposition Discovery in Bad Faith and Punitive Damage Cases, 56 FDCC Q. 409 (2006).

Jennifer C. Parker, Note, Beyond Medical Malpractice: Applying the Lost Chance Doctrine to Cure Causation and Damages Concerns with Educational Malpractice Claims, 36 U. MEM. L. REV. 373 (2006).

Robert S. Peck, Violating the Inviolate: Caps on Damages and the Right to Trial by Jury, 31 U. DAYTON L. REV. 307 (2006).

Paul Perell, A Bit about Bites: Liability for Damages Caused by a Dog, 31 ADVOCS. Q. 347 (2006).

Steven Plitt & Christie L. Kriegsfeld, The Punitive Damages Lottery Chase is Over: Is There a Regulatory Alternative to the Tort of Common Law Bad Faith and Does It Provide an Alternative Deterrent?, 37 ARIZ. ST. L.J. 1221 (2005).

Robert L. Rabin, Pain and Suffering and Beyond: Some Thoughts on Recovery for...

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