Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

PDF

University of Michigan Law School

Torts

Keyword
Publication Year
Publication
Publication Type

Articles 1 - 30 of 510

Full-Text Articles in Law

Tort Law And Civil Recourse, Mark A. Geistfeld Apr 2021

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.


From Automation To Autonomy: Legal And Ethical Responsibility Gaps In Artificial Intelligence Innovation, David Nersessian, Ruben Mancha Jan 2021

From Automation To Autonomy: Legal And Ethical Responsibility Gaps In Artificial Intelligence Innovation, David Nersessian, Ruben Mancha

Michigan Technology Law Review

The increasing prominence of artificial intelligence (AI) systems in daily life and the evolving capacity of these systems to process data and act without human input raise important legal and ethical concerns. This article identifies three primary AI actors in the value chain (innovators, providers, and users) and three primary types of AI (automation, augmentation, and autonomy). It then considers responsibility in AI innovation from two perspectives: (i) strict liability claims arising out of the development, commercialization, and use of products with built-in AI capabilities (designated herein as “AI artifacts”); and (ii) an original research study on the ethical practices ...


Sovereign Immunity And Interstate Government Tort, Louise Weinberg Jan 2021

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional ...


When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr May 2020

When Worlds Collide: Protecting Physical World Interests Against Virtual World Malfeasance, Hilary Silvia, Nanci K. Carr

Michigan Technology Law Review

If a virtual-world-game character is cast upon real-world property without the consent of the landowner, inducing or encouraging players to trespass, is the virtual-world creator liable for damages? The United States Supreme Court has recognized that digital technology presents novel issues, the resolution of which must anticipate its further rapid development. It is beyond dispute that protective legislation will be unable to keep up with rapidly evolving technology. The burden of anticipating and addressing issues presented by emerging technologies will ultimately fall upon the businesses responsible for generating them. This duty was most notably adopted by the creators of Pokémon ...


Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman May 2020

Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman

University of Michigan Journal of Law Reform

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s ...


The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe Apr 2020

The Ncaa's Special Relationship With Student-Athletes As A Theory Of Liability For Concussion-Related Injuries, Tezira Abe

Michigan Law Review

The National Collegiate Athletic Association (NCAA) is the primary governing body of college athletics. Although the NCAA proclaims to protect student-athletes, an examination of its practices suggests that the organization has a troubling history of ignoring the harmful effects of concussions. Over one hundred years after the NCAA was established, and seventy years after the NCAA itself knew of the potential effects of concussions, the organization has done little to reduce the occurrence of concussions or to alleviate the potential effects that stem from repeated hits to the head. This Note argues for recognizing a special relationship between the NCAA ...


Should Automakers Be Responsible For Accidents?, Kyle D. Logue May 2019

Should Automakers Be Responsible For Accidents?, Kyle D. Logue

Articles

Motor vehicles are among the most dangerous products sold anywhere. Automobiles pose a larger risk of accidental death than any other product, except perhaps opioids. Annual autocrash deaths in the United States have not been below 30,000 since the 1940s, reaching a recent peak of roughly 40,000 in 2016. And the social cost of auto crashes goes beyond deaths. Auto-accident victims who survive often incur extraordinary medical expenses. Those crash victims whose injuries render them unable to work experience lost income. Auto accidents also cause nontrivial amounts of property damage—mostly to the automobiles themselves, but also to ...


Tort Justice Reform, Paul David Stern Apr 2019

Tort Justice Reform, Paul David Stern

University of Michigan Journal of Law Reform

This Article calls for a comprehensive reform of public tort law with respect to law enforcement conduct. It articulates an effective and equitable remedial regime that reconciles the aspirational goals of public tort law with the practical realities of devising payment and disciplinary procedures that are responsive to tort settlements and judgments. This proposed statutory scheme seeks to deter law enforcement misconduct without disincentivizing prudent officers from performing their duties or overburdening them with extensive litigation. Rather than lamenting the dissolution of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics or the insurmountability of qualified immunity, reform ...


21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen Apr 2019

21st Century Cures Act: The Problem With Preemption In Light Of Deregulation, Megan C. Andersen

University of Michigan Journal of Law Reform

The 21st Century Cures Act introduced innovative changes to the Food and Drug Administration’s regulatory processes. In an effort to address the slow, costly, and burdensome approval process for high-risk devices, the Cures Act modernized clinical trial data by allowing reviewers to determine whether devices merit expedited review and to consider post-market surveillance data in the premarket approval process. These changes will get life-saving devices to the people who need them faster than ever before. But the tradeoff is a greater risk of injury to the patient. The 2008 Supreme Court decision Riegel v. Medtronic, Inc., held that any ...


Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker Jan 2019

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.


The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue Jan 2019

The Deterrence Case For Comprehensive Automaker Enterprise Liability, Kyle D. Logue

Journal of Law and Mobility

This Article lays out the potential (at this point purely theoretical) deterrence benefits of replacing our current auto tort regime (including auto products liability law, driver-based negligence claims, and auto no-fault regimes) with a single, comprehensive automaker enterprise liability system. This new regime would apply not only to Level 5 vehicles, but to all automobiles made and sold to be driven on public roads. Because such a system would make automakers unconditionally responsible for the economic losses resulting from any crashes of their vehicles, it would in effect make automakers into auto insurers as well, although such a change will ...


Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel Jan 2019

Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel

University of Michigan Journal of Law Reform

Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages.

Though the use of demographic features, such as race ...


Qualified Immunity And Constitutional Structure, Katherine Mims Crocker Jan 2019

Qualified Immunity And Constitutional Structure, Katherine Mims Crocker

Michigan Law Review

A range of scholars has subjected qualified immunity to a wave of criticism— and for good reasons. But the Supreme Court continues to apply the doctrine in ever more aggressive ways. By advancing two claims, this Article seeks to make some sense of this conflict and to suggest some thoughts toward a resolution.

First, while the Court has offered and scholars have rejected several rationales for the doctrine, layering in an account grounded in structural constitutional concerns provides a historically richer and analytically thicker understanding of the current qualified-immunity regime. For suits against federal officials, qualified immunity acts as a ...


A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach Jan 2019

A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach

Michigan Law Review

Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo ...


Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams Apr 2018

Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams

Michigan Law Review

A review of Don Herzog, Defaming the Dead.


Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten Mar 2018

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no ...


Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven Mar 2018

Minimum Virtual Contacts: A Framework For Specific Jurisdiction In Cyberspace, Adam R. Kleven

Michigan Law Review

As the ubiquity and importance of the internet continue to grow, courts will address more cases involving online activity. In doing so, courts will confront the threshold issue of whether a defendant can be subject to specific personal jurisdiction. The Supreme Court, however, has yet to speak to this internet-jurisdiction issue. Current precedent, when strictly applied to the internet, yields fundamentally unfair results when addressing specific jurisdiction. To better achieve the fairness aim of due process, this must change. This Note argues that, in internet tort cases, the “express aiming” requirement should be discarded from the jurisdictional analysis and that ...


Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt Jan 2018

Negligent Entrustment In Gun Industry Litigation: A Primer, Kate E. Britt

Law Librarian Scholarship

Deep pocket jurisprudence, where plaintiffs name corporations as codefendants of less wealthy individual tortfeasors, is not uncommon in tort litigation. When the plaintiffs are victims of gun violence and the corporate defendants are firearms manufacturers, however, these suits are particularly controversial. Instead of aiming to make the victims whole, these suits are opposed (or supported) as attempts to regulate the firearms industry on a widespread basis. This article explores some of the resources available to understand the recent history of suits against firearms manufacturers.


Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz Nov 2017

Treating Wrongs As Wrongs: An Expressive Argument For Tort Law, Scott Hershovitz

Articles

The idea that criminal punishment carries a message of condemnation is as commonplace as could be. Indeed, many think that condemnation is the mark of punishment, distinguishing it from other sorts of penalties or burdens. But for all that torts and crimes share in common, nearly no one thinks that tort has similar expressive aims. And that is unfortunate, as the truth is that tort is very much an expressive institution, with messages to send that are different, but no less important, than those conveyed by the criminal law. In this essay, I argue that tort liability expresses the judgment ...


Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler Jun 2017

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation ...


Private Rights And Private Wrongs, Andrew S. Gold Apr 2017

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.


Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom Mar 2017

Retaliatory Rico And The Puzzle Of Fraudulent Claiming, Nora Freeman Engstrom

Michigan Law Review

Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have “discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain non meritorious litigation constitutes racketeering activity— while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit. Curiously ...


Wrongs Without Rights. Review Of Wrongs, Rights, And Third Parties, By N. Cornell., Scott Hershovitz Jan 2017

Wrongs Without Rights. Review Of Wrongs, Rights, And Third Parties, By N. Cornell., Scott Hershovitz

Reviews

The word “wrong” is the source of much confusion, in part because it does double duty. “You set the table wrong,” I might say, noting that you’ve misplaced the forks and knives. When I say that, I imply that there’s a standard against which place settings are properly judged, and that you’ve mucked things up by failing to match it. This use of the word “wrong” pops up all over the place: “You took a wrong turn.” “That’s the wrong answer.” “Why do I get everything wrong?” But there’s another way to use the word ...


A Survey Of Legal Issues Arising From The Deployment Of Autonomous And Connected Vehicles, Daniel A. Crane, Kyle D. Logue, Bryce C. Pilz Jan 2017

A Survey Of Legal Issues Arising From The Deployment Of Autonomous And Connected Vehicles, Daniel A. Crane, Kyle D. Logue, Bryce C. Pilz

Michigan Telecommunications & Technology Law Review

With concerns rising over the number and variety of state regulations, companies are increasingly looking to the federal government for guidance. Representatives from Google, GM, Lyft, and Delphi testified before Congress on March 15, urging Congress to pass a federal law concerning autonomous vehicles. While the passage of any federal legislation is unclear at this time, other parts of the federal government have been extremely active in recent months. In January 2016, the Obama administration proposed a 10-year, $4 billion investment in autonomous vehicle technology. In that same announcement, the Department of Transportation (“DOT”) committed to developing model state policy ...


The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz Jan 2017

The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz

Reviews

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which ...


It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke Nov 2016

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework ...


Resolving The Divided Patent Infringement Dilemma, Nathanial Grow Nov 2016

Resolving The Divided Patent Infringement Dilemma, Nathanial Grow

University of Michigan Journal of Law Reform

This Article considers cases of divided patent infringement: those in which two or more parties collectively perform all the steps of a patented claim, but where no single party acting alone has completed the entire patented invention. Despite the increasing frequency with which such cases appear to be arising, courts have struggled to equitably resolve these lawsuits under the constraints of the existing statutory framework because of the competing policy concerns they present. On the one hand, any standard that holds two or more parties strictly liable whenever their combined actions infringe a patent risks imposing liability on countless seemingly ...


Where Kafka Reigns: A Call For Metamorphosis In Unlawful Detainer Law, John Campbell Apr 2016

Where Kafka Reigns: A Call For Metamorphosis In Unlawful Detainer Law, John Campbell

University of Michigan Journal of Law Reform

This story reflects a new reality in which nonjudicial foreclosure, combined with draconian unlawful detainer laws, concretizes the injuries associated with wrongful foreclosure, degrades the perceived legitimacy of the courts, and suppresses valid claims of wrongful foreclosure. Indeed, this very scenario happens regularly in a variety of states. This story is a very real tale of how homeowners are harmed by a foreclosure process that has largely escaped scholarly review. Rooted in the belief that sunshine is a powerful disinfectant, this Article aims to shed light on states that hogtie homeowners and makes a normative argument that such a process ...


To Touch And Concern The United States With Sufficient Force: How American Due Process And Choice Of Law Cases Inform The Reach Of The Alien Tort Statute After Kiobel, Karima Tawfik Apr 2016

To Touch And Concern The United States With Sufficient Force: How American Due Process And Choice Of Law Cases Inform The Reach Of The Alien Tort Statute After Kiobel, Karima Tawfik

Michigan Journal of International Law

This Note explores the post-Kiobel ATS cases and argues that the Fourth Circuit’s approach to considering claims that manifest a close connection to the United States as potentially entitling the plaintiff to relief under the ATS is preferable to approaches that categorically bar claims when the alleged conduct has occurred abroad. Part I describes the Kiobel decision in more depth and the subsequent ATS case law to outline the contours of recent circuit cases. Part II demonstrates how domestic personal jurisdiction and choice of law principles weigh in favor of a more expansive reading of the ATS, as ...


Three Problems (And Two Solutions) In The Law Of Partnership Formation, Shawn Bayern Apr 2016

Three Problems (And Two Solutions) In The Law Of Partnership Formation, Shawn Bayern

University of Michigan Journal of Law Reform

This Article considers several foundational questions concerning the formation of general partnerships, a topic that has received little modern attention and that is governed largely by classical axioms rather than adaptive modern considerations. Its three main topics concern (1) the timing of partnership formation, (2) the aggregation of multiple distinct questions under the single heading of “partnership formation,” and (3) the rarely challenged proposition that general partners ought to be liable for partnership obligations, a doctrine that is surprisingly at odds with the rest of modern business-entity law.