Law Commons^™

Trolley Problems, Private Necessity, And The Duty To Rescue, Laura A. Heymann

Faculty Publications

Laidlaw v. Sage is generally, at best, an oddity in Torts casebooks today. A case that captured the imagination of New York newspaper readers at the time, Laidlaw involved an explosion that, William Laidlaw argued, the wealthy Russell Sage survived only because, at the last moment, he pulled Laidlaw in front of him to absorb the brunt of the blast. As taught in Torts classrooms, Laidlaw is either a case about the intent requirement for battery or a case about causation. But the case, assuming the plaintiff’s story was true, also provides an interesting window into what would seem to …

Taking The Lead: A Strategic Analysis Of Stealthing And The Best Route For Potential Civil Plaintiffs To Recover, Mckenney Cornett

William & Mary Journal of Race, Gender, and Social Justice

A pervasive trend invading the sexual interactions between men and women, and homosexual men, is “stealthing” or “nonconsensual condom removal.” Stealthing garnered national and legal attention following Alexandra Brodsky’s article and study concerning the practice published in 2017. A typical stealthing case involves an initial, consensual sexual relationship between two parties predicated on the use of contraception. During the act, the partner removes the condom without the knowledge or consent of their sexual partner.

Despite its widespread impact, there has yet to be a criminal or civil case concerning nonconsensual condom removal brought in the United States, and the legislature …

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

Sylvanna Gross ’23: Reflections On The Fall 2020 Semester, Sylvanna Gross

Law School Personal Reflections on COVID-19

No abstract provided.

Candidate Privacy, Rebecca Green

Faculty Publications

In the United States, we have long accepted that candidates for public office who have voluntarily stepped into the public eye sacrifice claims to privacy. This refrain is rooted deep within the American enterprise, emanating from the Framers' concept of the informed citizen as a bedrock of democracy. Voters must have full information about candidates to make their choices at the ballot box. Even as privacy rights for ordinary citizens have expanded, privacy theorists and courts continue to exempt candidates from privacy protections. This Article suggests that two disruptions warrant revisiting the privacy interests of candidates. The first is a …

Knowing How To Know: Secondary Liability For Speech In Copyright Law, Laura A. Heymann

Faculty Publications

Contributory copyright infringement has long been based on whether the defendant, "with knowledge of the infringing activity," induced, caused, or materially contributed to another's infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to "know" of someone else's infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one "know," in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise--in some cases, a more …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Compensation At The Crossroads: Autonomous Vehicles & Alternative Victim Compensation Schemes, Tracy Hresko Pearl

William & Mary Law Review

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet wellsuited to handle.

Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently impacts (a) whether manufacturers can afford to produce these vehicles or whether …

Silencing State Courts, Jeffrey Steven Gordon

William & Mary Bill of Rights Journal

In state courts across the Nation, an absolutist conception of the First Amendment is preempting common law speech torts. From intentional infliction of emotional distress and intrusion upon seclusion, to intentional interference with contractual relations and negligent infliction of emotional distress, state courts are dismissing speech tort claims on the pleadings because of the broad First Amendment defense recognized by Snyder v. Phelps in 2011. This Article argues, contrary to the scholarly consensus, that Snyder was a categorical departure from the methodology adopted by New York Times Co. v. Sullivan, the landmark 1964 case that first applied the First …

'Neurophobia,' A Reply To Patterson, Peter A. Alces

Faculty Publications

No abstract provided.

Accidents And Aggregates, Lee Anne Fennell

William & Mary Law Review

Tort law responds to discrete, harmful events—“accidents”—by converting unruly facts into a binary on/off judgment about liability. This operation, characteristic of much of law, resembles the “thresholding” process used to convert grayscale images to black and white. It embeds decisions about how to isolate and evaluate the sample of risk-related behavior connected to the accident. This Article focuses on the implicit but powerful role that aggregation—of behavior, precautions, and events—plays in the determination of liability. These aggregative choices determine how large a slice of an injurer’s conduct tort law will capture within its viewfinder, and how tight the causal connection …

A Legal Perspective On The Trials And Tribulations Of Ai: How Artificial Intelligence, The Internet Of Things, Smart Contracts, And Other Technologies Will Affect The Law, Iria Giuffrida, Fredric Lederer, Nicolas Vermeys

Faculty Publications

No abstract provided.

Into The Gray Zone: Examining Mutual Combat As A Defense To Domestic Assault, Kristi A. Breyfogle

William & Mary Journal of Race, Gender, and Social Justice

For offenses committed under Virginia’s assault and battery against a household or family member statute, the State should prosecute and punish in cases where both parties committed an assault and battery. Punishment, however, should consist of mainly individualized counseling or some other mitigated punishment for cases of mutual fighting.

‘Relational Privacy’ & Tort, Stuart Hargreaves

William & Mary Journal of Race, Gender, and Social Justice

This Article argues that the current interpretation given to the four-part invasion of privacy framework by the courts is inadequate in the face of modern privacy challenges. In particular, it struggles with claims for privacy over public matters or other ‘non-secret’ matters that an individual may nonetheless have some ongoing privacy interest in. This Article suggests that this struggle is the result of the courts adopting a fixed, binary approach to privacy, which is itself grounded in a liberal-individualistic account of autonomy. While this may be a natural response to concerns about limiting the scope of the tort, it is …

Honest Victim Scripting In The Twitterverse, Francine Banner

William & Mary Journal of Race, Gender, and Social Justice

This Article critically analyzes Tweets regarding recent allegations of interpersonal violence against celebrities in order to explore societal perceptions of, and expectations about, alleged victims. The Article concludes that Twitter may be viewed as a micro-courtroom in which victims’ veracity and perpetrators’ responses are evaluated, interrogated, and assessed. A key, feminist critique of rape law is that the determination of the perpetrator’s guilt or innocence too often hinges on an assessment of the victim’s character. This is borne out on social networking sites, where terms such as “gold digger,” “slut,” and “ho” are engaged with regularity to describe those who …

Attorney’S Fees, Nominal Damages, And Section 1983 Litigation, Thomas A. Eaton, Michael L. Wells

William & Mary Bill of Rights Journal

Can plaintiffs recover attorney’s fees under 42 U.S.C. § 1988 when they establish constitutional violations but recover only nominal damages or low compensatory damages? Some federal appellate courts have concluded that no fee, or a severely reduced fee, should be awarded in such circumstances. This position, which we call the “low award, low fee” approach, rests primarily on the Supreme Court’s 1992 opinion in Farrar v. Hobby.

We argue that a “low award, low fee” approach is misguided for two main reasons. First, the majority opinion in Farrar is fragmented, and the factual record is opaque regarding what and how …

With Malice Toward One? – Defining Nondischargeability Of Debts For Willful And Malicious Injury Under Section 523(A)(6) Of The Bankrupcy Code, Theresa J. Pulley Radwan

William & Mary Business Law Review

The federal bankruptcy system strikes a balance between the rights of debtors seeking a fresh start and the rights of creditors seeking repayment for debt. While many areas of the Bankruptcy Code provide examples of this balancing act, perhaps no area of the Code embodies this balance better than discharge of debt. Discharge of debt provides the fresh start for debtors on which the bankruptcy system rests, but the Code also protects the interests of creditors who would otherwise have their claims against the debtor discharged.

Section 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the …

Judicial Patriarchy And Domestic Violence: A Challenge To The Conventional Family Privacy Narrative, Elizabeth Katz

William & Mary Journal of Race, Gender, and Social Justice

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators—sentencing men to fines, prison, and even the whipping post—for failing to conform to appropriate husbandly behavior, while …

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Challenging Hospital Vbac Bans Through Tort Liability, L. Indra Lusero

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Norfolk’S Flooding Adaptation Measures: Taking Lawful Precautions Or ‘Takings’ Lawsuits?, Emilie A. Whitehurst

Virginia Coastal Policy Center

No abstract provided.

Overview Of A City’S Tort Liability Duties To Maintain And Protect Local Government Services From Sea Level Rise: Poquoson Case Study, Alex Horning

Virginia Coastal Policy Center

No abstract provided.

“Takings” Liability For Vacating Roads In Flood-Prone Areas: Poquoson Case Study, Kelci Block

Virginia Coastal Policy Center

No abstract provided.

The Bloody Truth: Examining America's Blood Industry And Its Tort Liability Through The Arkansas Prison Plasma Scandal, Sophia Chase

William & Mary Business Law Review

Most of the time, blood transfusions are safe. Over the years, however, tragedies connected to tainted blood and blood products have ripped through communities on an international scale. Blood contaminated with hepatitis C, HIV, and hepatitis B has sickened and killed recipients, causing financial, political, and legal repercussions for those found responsible.

This Note seeks to explore one such tragedy: the Arkansas Prison Plasma Scandal. Occurring between 1982 and 1994 at the Cummins Prison in Grady, Arkansas, the scandal stemmed from the operation of a blood product center in which prisoners “bled” in exchange for $7 to $10 per donation. …

Civil Recourse As Social Equality, Jason M. Solomon

Faculty Publications

No abstract provided.

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Introductory Remarks: Explaining Tort Law, Michael S. Green

William & Mary Law Review

No abstract provided.

Outlaws And Outlier Doctrines: The Serious Misconduct Bar In Tort Law, Joseph H. King Jr.

William & Mary Law Review

No abstract provided.

The Externality Of Victim Care, Alan J. Meese

Faculty Publications

No abstract provided.