Law Commons^™

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

The Private Enforcement Of National Security, Maryam Jamshidi

Publications

The private enforcement of public law is a central feature of the American administrative state. As various scholars have argued, the federal government depends upon private parties to enforce public laws through litigation in order to achieve the government’s regulatory objectives. This scholarship has, however, largely overlooked the phenomenon of private enforcement in the national security arena. This Article seeks to describe and analyze national security’s private enforcement for the first time. In doing so, it explores what national security’s private enforcement reveals about the costs of private enforcement more broadly. In particular, this Article identifies an important downside to …

Anti-Subordination Torts, Scott Skinner-Thompson

Publications

No abstract provided.

A Recent Renaissance In Privacy Law, Margot Kaminski

Publications

Considering the recent increased attention to privacy law issues amid the typically slow pace of legal change.

Lessons From Literal Crashes For Code, Margot Kaminski

Publications

No abstract provided.

Criminal Employment Law, Benjamin Levin

Publications

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Privacy's Double Standards, Scott Skinner-Thompson

Publications

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

Employers' Duties Of Honesty And Accuracy, Helen Norton

Publications

This short essay is a contribution to the Labor Law Group's chapter-by-chapter critique and analysis of the American Law Institute's effort to restate the common law of employment through its 2015 Restatement of Employment Law. This essay focuses specifically on sections 6.05 and 6.06 of the Restatement, which address employers’ duties of honesty and accuracy in their communications to workers themselves as articulated by the torts of fraudulent and negligent misrepresentation.

Employers speak to workers about a wide range of job-related topics that include the terms and conditions of employment, business projections, and applicable workplace legal protections. Employers’ …

Taking A Second Look At Mdl Product Liability Settlements: Somebody Needs To Do It, Christopher B. Mueller

Publications

This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, and does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. …

Meta-Mindfulness: A New Hope, Peter H. Huang

Publications

This Essay starts by tracing its humble origins to an earlier, related and unique law review article, namely, Tiger Cub Strikes Back: Memoirs of an Ex-Child Prodigy About Legal Education and Parenting. This Essay describes various professional responses to Tiger Cub Strikes Back, provides an update of some developments in research about parenting and legal education since Tiger Cub Strikes Back, and recounts a few personal stories about mindfulness and related to being an ex-child prodigy. This Essay then analyzes meta-mindfulness, defined as mindfulness about mindfulness. This Essay discusses how mindfulness about mindfulness can help facilitate the …

Technological Opacity, Predictability, And Self-Driving Cars, Harry Surden, Mary-Anne Williams

Publications

Autonomous or “self-driving” cars are vehicles that drive themselves without human supervision or input. Because of safety benefits that they are expected to bring, autonomous vehicles are likely to become more common. Notably, for the first time, people will share a physical environment with computer-controlled machines that can both direct their own activities and that have considerable range of movement. This represents a distinct change from our current context. Today people share physical spaces either with machines that have free range of movement, but are controlled by people (e.g. automobiles) or with machines that are controlled by computers, but highly …

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Publications

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in the food …

Reining In The Rogue Squadron: Making Sense Of The "Original Source" Exception For Qui Tam Relators, Dayna Bowen Matthew

Publications

The qui tam provision of the Civil False Claims Act effectively serves to expand the government’s capacity to combat fraud, but also invites abusive prosecution against blameless public contractors. Although the public disclosure jurisdictional bar is designed to permit worthy claimants to proceed as whistle blowers while precluding parasitic opportunists from unfairly imposing litigation costs and reaping undeserved awards, the inconsistent judicial interpretation of the original source exception threatens predictable and just law enforcement. Christopher Alexion’s note categorizes the approaches courts have taken as ranging from permissive, to “middle ground” to restrictive based on the timing of the relator’s disclosure, …

Tort Damages And The New Science Of Happiness, Rick Swedloff, Peter H. Huang

Publications

The happiness revolution is coming to legal scholarship. Based on empirical data about the how and why of positive emotions, legal scholars are beginning to suggest reforms to legal institutions. In this article we aim to redirect and slow down this revolution.

One of their first targets of these legal hedonists is the jury system for tort damages. In several recent articles, scholars have concluded that early findings about hedonic adaptation and affective forecasting undermine tort awards for pain and suffering, mental anguish, loss of enjoyment of life, and other non-economic damages. In the shadow of a broader debate about …

Emotional Adaptation And Lawsuit Settlements, Peter H. Huang

Publications

In Hedonic Adaptation and the Settlement of Civil Lawsuits, Professors John Bronsteen, Christopher Buccafusco, and Jonathan Masur note an unexplored aspect of protracted lawsuits: During prolonged litigation tort victims can adapt emotionally to even permanent injuries, and therefore are more likely to settle--and for less--than if their lawsuits proceeded faster. This Response demonstrates that this is a facile application of hedonic adaptation with the following three points. First, people care about more than happiness: Tort victims may sue to seek justice or revenge; emotions in tort litigation can be cultural evaluations; and people are often motivated by identity and …

An External Perspective On The Nature Of Noneconomic Compensatory Damages And Their Regulation, Ronald J. Allen, Alexia Brunet, Susan Spies Roth

Publications

No abstract provided.

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

Preemption Of Common Law Claims And The Prospects For Fifra: Justice Stevens Puts The Genie Back In The Bottle, Jennifer S. Hendricks

Publications

In the upcoming Term, the Supreme Court will consider a case raising the question whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts state tort law, or only state positive law. FIFRA, under which the Environmental Protection Agency regulates pesticide labels, has an express preemption clause and clearly preempts state positive law on labeling. The question presented is whether and to what extent it also preempts state tort law, particularly claims for failure to warn. The Court's precedent on preemption of state tort law is erratic, but for some reason, the pro-preemption view has been much more popular with lower …

Homicide On Holiday: Prosecutorial Discretion, Popular Culture, And The Boundaries Of The Criminal Law, Carolyn B. Ramsey

Publications

This article discusses prosecutors' discretion to press criminal charges against individuals who cause death during recreational activities. Based on newspaper sources, published opinions, and unpublished materials from cases that resulted in plea bargains, Homicide on Holiday continues the author's exploration of the relationship between the American public, criminal prosecutors, and the nature of the prosecutors' public role. It shows that, despite popular culture's glorification of risk and a nationwide trend in tort law toward sheltering sports co-participants from civil negligence liability, an exhilarating trip down a ski slope is increasingly likely to land a skier in jail if he collides …

Controlling Toxic Harms: The Struggle Over Dioxin Contamination In The Pulp And Paper Industry, William Boyd

Publications

This essay addresses the challenges of controlling toxic harms through an intensive case study of efforts to regulate and remedy dioxin contamination in the U.S. pulp and paper industry. By focusing on the struggle to control a specific toxic harm in a specific industrial sector, the essay explores the politicized nature of toxic harms in the United States and, in the process, highlights the considerable shortcomings of existing legal frameworks and institutions for dealing with problems of such scope and complexity. In doing so, the essay raises a host of normative issues regarding current institutional arrangements and the appropriate strategy …

Media Violence Tort Cases: Problems Of Causation And The First Amendment, David Franklyn

Publications

Introduction to the Northern Kentucky Law Review Symposium 2000.

Introduction To The Northern Kentucky Law Review Products Liability Symposium 1999, David Franklyn

Publications

Introduction to the Northern Kentucky Law Review Products Liability Symposium 1999.

The Apparent Manufacturer Doctrine, Trademark Licensors And The Third Restatement Of Torts, David Franklyn

Publications

In this Article, I argue that trademark licensors should be subjected to liability under the apparent manufacturer doctrine in two situations: (1) when a licensor induces consumers to believe the licensor manufactured the product, or (2) when a licensor induces consumers to believe that the licensor controlled the standards or specifications for manufacturing the product. Under either prong of the proposed test, a plaintiff would be required to show that a reasonable consumer of the licensed product would have relied on the trademark in the requisite manner. Once the plaintiff makes this showing, courts would then presume that the actual …

Pink Elephants In The Rape Trial: The Problem Of Tort-Type Defenses In The Criminal Law Of Rape, Aya Gruber

Publications

No abstract provided.

Comments To The Reporters And Selected Members Of The Consultative Group, Restatement Of Torts (Third): Products Liability, Howard C. Klemme

Publications

No abstract provided.

Meta-Evidence: Do We Need It?, Christopher B. Mueller

Publications

No abstract provided.

Lender Liability: The Dilemma Of The Controlling Creditor, J. Dennis Hynes

Publications

No abstract provided.

Sex, Lies And Videotape: The Pornographer As Censor, Marianne Wesson

Publications

The legal branch of the women's movement, although of one mind on some subjects, is divided on the proper approach to pornography. Some feminists oppose the imposition of any legal burdens on pornography because they fear that feminist speech will be caught in the general suppression, and others believe that any such burdens must violate the first amendment. Professor Wesson suggests that pornography should be defined to include only those materials that equate sexual pleasure with the infliction of violence or pain, and imply approval of conduct that generates the actor's arousal or satisfaction through this infliction. So defined, pornography …

Design Defects In Equipment: When Are Government Contractors Liable For Injuries To Military Personnel?, Emily Calhoun

Publications

No abstract provided.

Can A Tribal Court Be Enjoined From Exercising Jurisdiction Over Nonmembers Of The Tribe?, Richard B. Collins

Publications

No abstract provided.