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Articles 1 - 30 of 60
Full-Text Articles in Law
I Pity The Fool: Ori Herstein’S Defense Of The Klutz, Anthony J. Sebok
I Pity The Fool: Ori Herstein’S Defense Of The Klutz, Anthony J. Sebok
Online Publications
The sad story of Menlove, the defendant in the English case Vaughn v. Menlove is well known to all first-year torts students. Menlove was born, according to his lawyer, with the “misfortune of not possessing the highest order of intelligence,” and, as a result did something quite imprudent with flammable material that no person of average or typical intelligence (or judgment) would have done, resulting in a fire that damaged the plaintiff, his neighbor.
The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan
The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan
Faculty Scholarship
It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.
Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …
Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz
Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz
Faculty Scholarship
Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …
Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman
Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman
Testimony
The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …
Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman
Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman
Testimony
“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …
Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden
Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden
Life of the Law School (1993- )
No abstract provided.
Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida
Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida
Faculty Publications
No abstract provided.
Potential Liability For Physicians Using Artificial Intelligence, W. Nicholson Price Ii, Sara Gerke, I Glenn Cohen
Potential Liability For Physicians Using Artificial Intelligence, W. Nicholson Price Ii, Sara Gerke, I Glenn Cohen
Articles
Artificial intelligence (AI) is quickly making inroads into medical practice, especially in forms that rely on machine learning, with a mix of hope and hype. Multiple AI-based products have now been approved or cleared by the US Food and Drug Administration (FDA), and health systems and hospitals are increasingly deploying AI-based systems. For example, medical AI can support clinical decisions, such as recommending drugs or dosages or interpreting radiological images.2 One key difference from most traditional clinical decision support software is that some medical AI may communicate results or recommendations to the care team without being able to communicate the …
Climate Change And Dam Owner Liability In Rhode Island, Read Porter, James Philopena Jr., Cory Lee
Climate Change And Dam Owner Liability In Rhode Island, Read Porter, James Philopena Jr., Cory Lee
Sea Grant Law Fellow Publications
Increasing precipitation associated with climate change is affecting dam operation and hazards in Rhode Island. Flooding caused by increased precipitation or extreme weather events can cause dam failure or upstream or downstream flooding, resulting in loss of life and property. These losses can result in liability, which may vary based on the dam owner and its purpose. This study assists dam owners and the public in understanding the potential liabilities that may arise as a result of flooding from extreme weather events. Section one provides a background of dam hazards in Rhode Island in the context of climate change. Section …
Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino
Brief Of Amici Curiae Employment Law Professors In Support Of Respondents, Sandra F. Sperino
Faculty Articles and Other Publications
This Court should not interpret section 1981 to require proof of but-for causation, given that statute’s text, history, and purpose. Although Comcast invokes the canon of statutory construction that Congress intends statutory terms to have their settled common-law meaning, that canon does not apply here. Section 1981 has no statutory text that reflects a common-law understanding of causation. Indeed, in 1866, when Congress enacted the predecessor to section 1981, there was no well-settled common law of tort at all. Rather, just as courts have read 42 U.S.C. § 1982, which shares common text, history and purpose, this Court should read …
First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus
First Transit V. Chernikoff, 135 Nev. Adv. Op. 32 (Aug. 1, 2019), Michael Holthus
Nevada Supreme Court Summaries
The Court clarified that (1) the heightened duty of care by common carriers only applies to transportation-related risks, and (2) when a common carrier is aware of a passenger’s disability, reasonable care includes providing safe transport that the circumstances reasonably require based on the disability.
Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod
Ordinary Causation: A Study In Experimental Statutory Interpretation, James Macleod
Faculty Scholarship
No abstract provided.
Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman
Rediscovering The Issue Class In Mass Tort Mdls, Myriam E. Gilles, Gary Friedman
Articles
For the past twenty-plus years, MDL transferee judges have essentially regarded the class device as unavailable as they struggle to organize masses of tort actions sent their way by the JPML. Even the badges and incidents of class practice, in the form of common-fund-based approaches to attorney compensation and lead-counsel structures for case organization, have come under attack from commentators who insist that mass-tort MDLs should not be treated as “quasi-class actions,” and that Rule 23 does not present a “grab bag” from which MDL judges may pick and choose the most convenient implements. Leading lights of the complex litigation …
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Are Literary Agents (Really) Fiduciaries?, Jacqueline Lipton
Articles
2018 was a big year for “bad agents” in the publishing world. In July, children’s literature agent Danielle Smith was exposed for lying to her clients about submissions and publication offers. In December, major literary agency Donadio & Olson, which represented a number of bestselling authors, including Chuck Palahnuik (Fight Club), filed for bankruptcy in the wake of an accounting scandal involving their bookkeeper, Darin Webb. Webb had embezzled over $3 million of client funds. Around the same time, Australian literary agent Selwa Anthony lost a battle in the New South Wales Supreme Court involving royalties she owed to her …
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
There were over 40 torts cases in 2019, of which just over half involved the tort of negligence. Unlike previous years, this year's review will deal only with the ten most significant judgments. A full list of torts cases is included at the end of this chapter for the convenience of readers. Of the ten cases, not surprisingly, five of them are claims in negligence. Of these, three involve medical negligence and two involve negligent misrepresentation causing economic loss. The remaining cases relate to claims under the tort of conspiracy, defamation, fraud (or deceit), malicious falsehood as well as nuisance …
Autonomy, Gideon Parchomovsky, Alex Stein
Autonomy, Gideon Parchomovsky, Alex Stein
All Faculty Scholarship
Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.
Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …
Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield
Congress Prescribes Preemption Of State Tort-Reform Laws To Remedy Healthcare "Crisis": An Improper Prognosis?, Jason C. Sheffield
Student Scholarship
Say what you want about the tort-reform debate, but it has staying power. Over the last half-century, legislators and commentators have extensively debated every aspect of tort reform and the litigation "crisis" arguably giving rise to it, without resolving much of anything. Despite this ideological stalemate, tort-reform proponents have managed to push measures through every state legislature. With fifty tries come fifty results, and for the most part, fifty failures. But have all these efforts been in vain? As of yet, no. Although the healthcare system does not appear to be improving, the numerous tort-reform measures states have adopted provide …
Should Automakers Be Responsible For Accidents?, Kyle D. Logue
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 highways, bridges, or …
Municipal Options To Address Nuisance Flooding Of Coastal Highways In Rhode Island, Marine Affairs Institute, Roger Williams University School Of Law, Olivia Thompson, Read Porter
Municipal Options To Address Nuisance Flooding Of Coastal Highways In Rhode Island, Marine Affairs Institute, Roger Williams University School Of Law, Olivia Thompson, Read Porter
Sea Grant Law Fellow Publications
Sea level rise and more powerful storm surges and erosion have increased flooding in low-lying coastal areas of Rhode Island. These impacts affect coastal highways, requiring municipalities to make difficult choices about whether and how to maintain or abandon their infrastructure. This fact sheet helps cities and towns understand their legal duties, options, and potential liabilities when considering the future of threatened coastal infrastructure. By using the information in this fact sheet, municipalities can make informed decisions about the consequences of their infrastructure investments. After providing background on nuisance flooding associated with sea level rise, this fact sheet describes Rhode …
The Structure Of Torts, Thomas C. Galligan Jr.
The Structure Of Torts, Thomas C. Galligan Jr.
Journal Articles
Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts …
Equitable Compensation And The Brickenden “Rule” After Winsta Holding Pte Ltd And Another V Sim Poh Ping And Others, Nicholas Liu
Equitable Compensation And The Brickenden “Rule” After Winsta Holding Pte Ltd And Another V Sim Poh Ping And Others, Nicholas Liu
Research Collection Yong Pung How School Of Law
The Brickenden rule, which was thought to provide an exception to the requirement of but-for causation of loss in equitable compensation for breach of fiduciary duty, has recently been rejected by the Singapore High Court in Winsta Holding Pte Ltd and another v Sim Poh Ping and others (Winsta Holding). This case comment suggests that although the substantive position arrived at in Winsta Holding is a sound one, it should not entail a rejection of the Brickenden rule. Properly understood, the Brickenden “rule” is consistent with the requirement that the principal prove but-for causation.
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman
All Faculty Scholarship
The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.
The lecture (as adapted for this Article) explores …
Time For A Fresh Look At Strict Liability For Pharmaceuticals, Mary J. Davis
Time For A Fresh Look At Strict Liability For Pharmaceuticals, Mary J. Davis
Law Faculty Scholarly Articles
Part I provides a brief and basic explanation of pharmaceutical liability treatment. Part II explains the impact of federal preemption doctrine, which has dramatically limited the operation of tort law in pharmaceutical liability cases. Part III explains the parallel trends in the marketing and use of pharmaceuticals that increase the incidence of adverse drug events, affect prescribing practices, and fail to enhance informed practitioner and consumer choice in use of pharmaceuticals. Part IV provides support for the application of strict liability given the convergence of these trends. This Part also provides a theoretical justification for strict liability in tort for …
Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore
Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore
Faculty Scholarship
The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents …
The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis
The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis
Journal Articles
No abstract provided.
Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law
Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law
School of Law Public Interest Auction
No abstract provided.
Is Less Really More? Abraham And Kendrick On Getting Rid Of Affirmative Duties, Anthony J. Sebok
Is Less Really More? Abraham And Kendrick On Getting Rid Of Affirmative Duties, Anthony J. Sebok
Online Publications
When it comes to inherited scholarly categories and taxonomies, a prominent strand of modern American tort scholarship pursues a particular kind of deflationary agenda. The First and Second Restatements divided the law of negligence into sub-rules distinguished by spurious differences (for example, the section on “type of negligent acts” distinguished between “Use of Incompetent or Defective Instrumentalities” and “Want of Preparation”). The Third Restatement combined many rules that could be brought under a more general description – the laundry list of types of negligent acts has been radically pruned, leaving just a handful, such as “negligent failure to warn”.
The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof
The Internet Of Torts: Expanding Civil Liability Standards To Address Corporate Remote Interference, Rebecca Crootof
Law Faculty Publications
Thanks to the proliferation of internet-connected devices that constitute the “Internet of Things” (“IoT”), companies can now remotely and automatically alter or deactivate household items. In addition to empowering industry at the expense of individuals, this remote interference can cause property damage and bodily injury when an otherwise operational car, alarm system, or implanted medical device abruptly ceases to function.
Even as the potential for harm escalates, contract and tort law work in tandem to shield IoT companies from liability. Exculpatory clauses limit civil remedies, IoT devices’ bundled object/service nature thwarts implied warranty claims, and contractual notice of remote interference …
Safe Social Spaces, Ari Ezra Waldman
Safe Social Spaces, Ari Ezra Waldman
Articles & Chapters
Technologies that mediate social interaction can put our privacy and our safety at risk. Harassment, intimate partner violence and surveillance, data insecurity, and revenge porn are just a few of harms that bedevil technosocial spaces and their users, particularly users from marginalized communities. This Article seeks to identify the building blocks of safe social spaces, or environments in which individuals can be free of privacy and safety dangers. Relying on analogies to offline social spaces—Alcoholics Anonymous meetings, teams of coworkers, and attorney-client relationships—this Article argues that if a social space is defined as an environment characterized by disclosure, then a …
Does Multidistrict Litigation Deny Plaintiffs Due Process?, Elizabeth Chamblee Burch
Does Multidistrict Litigation Deny Plaintiffs Due Process?, Elizabeth Chamblee Burch
Popular Media
No abstract provided.