Consumer Protection Law Commons^™

The Tiktok Algorithm Is Good, But Is It Too Good? Exploring The Responsibility Of Artificial Intelligence Systems Reinforcing Harmful Ideas On Users, Julianne Gabor

Catholic University Journal of Law and Technology

No abstract provided.

The Friday Night “Who Is Driving?” Debate Will Soon Come To An End: How Autonomous Vehicles Are Changing Our Lives And Societal Norms, Nicholas Calabria

Touro Law Review

No abstract provided.

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians …

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on …

Are You Free To Contract Away Your Right To Bring A Negligence Claim?, Scott J. Burnham

Chicago-Kent Law Review

This article explores the enforceability of the exculpatory clause—a contract term in which one party agrees to give up the right to bring a negligence claim against the other party. A spectrum of views on whether a contract containing such a clause is aberrant or not is presented and analyzed, followed by the author’s view of the rubric by which the enforceability of the clause should be measured. The article concludes by deconstructing one contract in which the clause was found.

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Determining The Proper Pleading Standard Under The Private Securities Litigation Reform Act Of 1995 After In Re Silicon Graphics , Erin Brady

Pepperdine Law Review

No abstract provided.

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Teaching Torts With Sports, Adam Epstein

Adam Epstein

The purpose of this paper is to offer a pedagogical road map for an alternative way to engage students when arriving at the torts portion of the business law or legal environment course. It is designed to encourage utilizing sports cases and sport-related videos when teaching torts which can be effective and energizing. My research demonstrates that the prominence of sports related tort cases and examples are much more apparent in the negligence and intentional tort categories than in products liability or strict liability. More specifically, an effective way to relate the concept of negligence in sports is in the …

The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz

Other Publications

As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …

Torts And Innovation, Gideon Parchomovsky, Alex Stein

Michigan Law Review

This Essay exposes and analyzes a hitherto overlooked cost of tort law: its adverse effect on innovation. Tort liability for negligence, defective products, and medical malpractice is determined by reference to custom. We demonstrate that courts' reliance on custom and conventional technologies as the benchmark of liability chills innovation and distorts its path. Specifically, recourse to custom taxes innovators and subsidizes replicators of conventional technologies. We explore the causes and consequences of this phenomenon and propose two possible ways to modify tort law in order to make it more welcoming to innovation.

Fda Regulatory Compliance Reconsidered, Carl W. Tobias

Law Faculty Publications

Many observers consider the Food and Drug Administration (FDA) vital for the protection of consumer health and safety. One hundred years ago, Congress established the entity that would become the FDA and authorized it to regulate foods and drugs, critical responsibilities that the agency has long discharged carefully. Throughout the past century, the FDA's regulatory power has expanded systematically, albeit gradually, while legislatures and courts in the fifty American jurisdictions broadened liability exposure for manufacturers that sold defective products that injured consumers. Observers have recently criticized the agency for overseeing pharmaceuticals too leniently, even as states increasingly narrowed manufacturers' liability …

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …

Private Liability For Reckless Consumer Lending, John A. E. Pottow

Articles

Congress recently enacted amendments to the Bankruptcy Code that possess the overarching theme of cracking down on debtors due to the increasing rate at which individuals have been filing for bankruptcy. Taking into account the correlation between the overall rise in consumer credit card debt and the rate of individual bankruptcy filings, the author nevertheless hypothesizes that not all credit card debt is troubling. Instead, the author proposes that the catalyst driving individual bankruptcy rates higher than ever is the level of "bad credit"-or credit extended to individuals even though there is a reasonable likelihood that the individual will be …

Restating The Law: The Dilemmas Of Products Liability, Robert L. Rabin

University of Michigan Journal of Law Reform

Tracing products liability law from its origins to present day developments, Professor Rabin discusses the long-standing presence of interwoven strands of contract and tort ideology, as well as the perennial tensions between strict liability and negligence. These themes are evident both in the distinctly influential California case law and in the two Restatement efforts to systematize the doctrine that has emerged nationally. Rabin identifies the manner in which foundational ideological precepts of consumer expectations and enterprise liability have contributed to a continuously dynamic, if often unsettled, debate over the appropriate regime for resolving product injury claims.

Hamilton V. Accutek: Potential Collective Liability Of The Handgun Industry For Negligent Marketing, Tyrone Hughes

Touro Law Review

No abstract provided.

Liability For Unreasonably And Unavoidably Unsafe Products: Does Negligence Doctrine Have A Role To Play, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

To what extent, if any, should courts hold defendants liable for harm caused by hazards associated with the unduly and unavoidably dangerous aspects of goods they produce and market?

Where manufacturers might have eliminated unreasonable risks arising from the manufacture or design of a product, or from the information (or lack thereof) conveyed by a product's labeling, the tort system traditionally has provided injured victims with an opportunity to obtain compensation for injuries attributable to these risks. Moreover, even where risks from manufacturing or construction defects could not have been eliminated with the exercise of reasonable care, the courts have …

Caveat Emptor: Will The A.L.I. Erode Strict Liability In The Restatement (Third) For Products Liability?, John F. Vargo

Touro Law Review

No abstract provided.

Doctrinal Collapse In Products Liability: The Empty Shell Of Failure To Warn, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

Liability for a manufacturer's failure to warn of product-related risks is a well-established feature of modern products liability law. Yet many serious doctrinal and conceptual problems underlie these claims. Professors Henderson and Twerski explore these problems and argue that failure-to-warn jurisprudence is confused, perhaps irreparably, and that this confusion often results in the imposition of excessive liability on manufacturers. The authors begin by exposing basic errors resulting from courts' confusion over whether to apply a strict liability or a negligence standard of care in failure-to-warn cases. Having determined that negligence is the appropriate standard, they then examine more substantial and …

Coping With The Time Dimension In Products Liability, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Products Liability--Applicability Of Comparative Negligence, David A. Fischer

Faculty Publications

Products liability and comparative negligence are two very rapidly developing fields of tort law. In recent years, the vast majority of courts have adopted strict liability for harm caused by defective products. At the same time, the doctrine of comparative negligence has changed almost overnight from a doctrine that had been accepted by only a handful of jurisdictions into what is now the majority approach in this country.

Informed Consent And The Investigational Use Of Medical Devices: A Comparison Of Common Law Duties With Those Imposed On Researchers Under Section 520(G) Of The Medical Device Amendments Of 1976, Thomas G. Field Jr., Dominic Piacenza

Law Faculty Scholarship

This paper will deal with with exemption granted [under the Medical Device Amendments Act of 1976] for the investigational use of devices subject to premarket testing, and more particularly, with the obligation of an investigator seeking such exemption to secure an informed consent agreement from human subjects (or their representatives) under § 520(g)(3)(D) of the Act. It will also consider the relationship between the statutory obligation and that which might be imposed by the common law of negligence.

Products Liability--Some Observations About Allocation Of Risks, Page Keeton

Michigan Law Review

Virtually all of the activities of mankind involve the use of some product. Consequently, nearly all losses in the nature of physical damage to persons or things, and a great deal of the economic losses flowing from inferior or unfit products, are factually caused by characteristics or conditions of products, or at least occur during the use of products. Therefore, when fault, in the sense in which fault has been used in the Anglo-American law of torts (a usage which frequently results in the imposition of liability without personal fault), is abandoned as a basis for shifting or allocating losses, …

Products Liability--The Expansion Of Fraud, Negligence, And Strict Tort Liability, John A. Sebert Jr.

Michigan Law Review

While judicial acceptance of this concept of strict tort liability has been proceeding apace, far less dramatic but equally significant developments have been occurring with respect to both negligence and fraud liability. The possibility of recovering for a seller's misrepresentations concerning his product has been enhanced by a plaintiff-oriented judicial redefinition of two elements of a cause of action for fraud: defendant's knowledge of the falsity of his representation and plaintiff's reliance upon the deception. At the same time, negligence liability has often come to resemble liability without fault as courts continue to deemphasize, as a prerequisite to the application …

Sales - Implied Warranty - Privity Of Contract As A Prerequisite To Recovery From Manufacturer, John L. Peschel S. Ed.

Michigan Law Review

Plaintiff sustained injuries in the course of his employment when a defective abrasive wheel, while being used in its intended manner, exploded in his face. The abrasive wheel was purchased by plaintiff's employer directly from the manufacturer. Plaintiff sought recovery from the manufacturer on two grounds: negligence in the manufacture of the abrasive wheel and breach of implied warranty for fitness of purpose. The negligence issue was submitted to the jury, which returned a verdict adverse to the plaintiff. The manufacturer's demurrer to the cause of action based upon implied warranty was sustained by the trial court. On appeal from …

Negligence--Liability Of Manufacturer To User Of Goods, James T. Hatcher

Kentucky Law Journal

No abstract provided.