Torts Commons^™

A How-To Guide For When Your Favorite Meme Account Is Defamed: Involuntary Public Figures In Defamation, Privacy, And Intentional Infliction Of Emotional Distress Law, Elizabeth Mcmullen

Catholic University Journal of Law and Technology

The world we live in today has changed infinitely since the inception of our Constitution and early legal doctrine. Our Founding Fathers could never have predicted that we would one day live in a world where anyone living in any corner of the globe could garner millions of followers. Whether someone finds him or herself to be particularly proficient in writing Harry Potter fan fiction or to be the best creator of memes with an American Girl Doll focus, ordinary citizens could find themselves suddenly jolted out of quiet anonymity by one unexpectedly viral post. Despite years of Instagram micro-fame, …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Swipe Right Into A Disciplinary Hearing: How The Use Of Dating Apps Could Earn An Attorney More Than A Bad First Date, Zachary S. Aman

Catholic University Journal of Law and Technology

The Model Rules of Professional Conduct seek to police the conduct of attorneys. Each jurisdiction adopts its own rules of professional conduct to apply to the attorneys licensed within it. Notably, the model rules prohibit any sexual relationship between the attorney and client unless that relationship precedes the attorney-client relationship. Traditionally, defining a "sexual relationship" was simple, particularly if the attorney and client engaged in sexual intercourse. The introduction of dating apps, however, has blurred the line.

This article outlines the inherent risks of attorneys using dating apps at a time when most newly-licensed attorneys make up the majority of …

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.

Airdropping Justice: The Constitutionality Of Service Of Process Via Non-Fungible Token, Jenifer Jackson

Catholic University Journal of Law and Technology

No abstract provided.

The Curious Case Of Tort Liability For A Defective Product That The Defendant Did Not Make, Sell, Or Distribute, Marin Roger Scordato

Scholarly Articles

Rarely does the United States Supreme Court consider and decide an issue of tort law, especially one that does not implicate any aspect of federal constitutional law.

The problem of bare-metal equipment is just such an issue, taken up and addressed by the U.S. Supreme Court less than three years ago in the case of Air and Liquid Systems Corp. v. DeVries. Despite the Court’s opinion, the question continues to generate different responses from state courts and fails to enjoy much accord or consensus at the state-law level, where it has the greatest practical impact. The problem presented to the …

The Inconsistencies Of Consent, Chunlin Leonhard

Catholic University Law Review

U.S. legal scholars have devoted a lot of attention to the role that consent has played in laws and judicial consent jurisprudence. This essay contributes to the discussion on consent by examining judicial approaches to determining the existence of consent in three selected areas--contracts, tort claims involving medical treatment, and criminal cases involving admissibility of confessions, from the late nineteenth century until the present. This article examines how courts have approached the basic factual question of finding consent and how judicial approaches in those areas have evolved over time. The review shows that the late 19th century saw courts adopting …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin Roger Scordato

Scholarly Articles

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate. In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Sounds Of Science: Copyright Infringement In Ai Music Generator Outputs, Eric Sunray

Catholic University Journal of Law and Technology

The music business is no stranger to disruptive technology. The industry’s apparent comeback from the devastating downturn caused by illegal file sharing seems to have arrived just in time for what may be an even more disruptive technological phenomenon: artificial intelligence (“AI”). Much has been said about the implications of AI-generated music, ranging from issues of ownership, to rights of publicity. However, there has been surprisingly little discussion of infringement in the AI systems’ outputs. By examining the functionality of AI music generators through the lens of de minimis use case law, this paper will explain how the outputs of …

What's In Your Box? Removing The Tiffany Standard Of Knowledge In Online Marketplaces, Hayley Dunn

Catholic University Journal of Law and Technology

Online shopping is a quintessential component of modern life. Millions of products from trusted brands are conveniently available at single-stop online marketplaces such as Amazon, eBay, and Alibaba with the click of a button from the comfort of home. But is the product delivered to the consumer’s front door actually the same as the one found on a store shelf? Pervasive trademark infringement in online marketplaces makes the answer to this question difficult, that is, until the consumer experiences negative consequences from a counterfeited product.

Under Tiffany (NJ) Inc. v. eBay, Inc., online marketplaces face almost no liability …

Reconstructing Malice In The Law Of Punitive Damages, Marc O. Degirolami

Scholarly Articles

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal …

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

How Can We End #Cancelculture—Tort Liability Or Thumper’S Rule?, Nanci K. Carr

Catholic University Journal of Law and Technology

In the Disney film Bambi, when the young rabbit Thumper says that Bambi “is kinda wobbly” and “doesn’t walk too good,” Thumper’s mother tells him “if you can’t say something nice, don’t say anything at all.” The Des Moines Register seems to have forgotten Thumper’s Rule when it uncovered Carson King’s teenage tweets and canceled the relationship he had built with Busch Light while raising $3 million for the Stead Family Children’s Hospital. #CancelCulture is a social media phenomenon, where some people use their voices to cancel the platform enjoyed by others. It is the 2019 equivalent of the …

Privacy, Eavesdropping, And Wiretapping Across The United States: Reasonable Expectation Of Privacy And Judicial Discretion, Carol M. Bast

Catholic University Journal of Law and Technology

One-party consent and all-party consent eavesdropping and wiretapping statutes are two broad pathways for legislation to deal with the problem of secret taping and some states protect conversation under state constitutions. Whether a conversation is protected against being taped as a private conversation is often gauged by the reasonable expectation of privacy standard. Judges in both all-party consent and one-party consent jurisdictions have had to use their leeway under the reasonable expectation of privacy standard to arrive at what at the time seemed to be the most appropriate solution, perhaps in doing so creating a case law exception.

Pre-Game Strategy For Long-Term Win: Using Trademark Registration And Right Of Publicity To Protect Esports Gamers, John Bat

Catholic University Journal of Law and Technology

The soaring popularity of esports across the globe has turned ultra-talented gamers into a blend of athlete and entertainer. The youthful esports ecosystem is exploding in growth, and the world is taking notice. But are the gamers who are eyeing professional play taking basic legal steps to develop and shield their brands, as well as bolster their collective negotiating leverage with teams, leagues, and miscellaneous entities? This note explores what features of an up-and-coming esports gamer might be worth protecting through a trademark and/or personality-rights schema, which in turn, could assist competitive gamers who are interested in developing their careers …

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith & William P. Lane

Catholic University Law Review

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith Ii, William P. Lane

Scholarly Articles

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …

Rape On The Washington Southern: The Tragic Case Of Hines V. Garrett, Michael I. Krauss

Catholic University Law Review

In 1919, Ms. Julia May Garret, a young Virginian woman, was brutally raped by two different men as she was walking home after the Washington Southern Railway failed to stop at her designated station. What followed was a legal battle that created precedent still discussed in American casebooks today. Although most case law recognizes that the criminal acts of third parties severs liability because such conduct is considered unforeseeable, Hines v. Garrett held that the harm Ms. Garrett suffered was within the risk created by the railroad’s negligence, and as a common carrier, the railroad owed her a duty to …

Developing Exposure-Based Preconception Tort Liability: A Scientific Challenge To Traditional Tort Concepts, Nicholas P. Putz

Catholic University Law Review

With all of the recent advances in science and technology, humans are being exposed to many new and complex substances for the first time. Such exposure has led to an array of medical complications, ranging from cancer to physical deformity. However, simultaneous advances in other areas of science and technology are, for the first time, beginning to provide humans with the tools to pinpoint the causes of disease. Unfortunately, a sufficient causal diagnosis in the medical field does not directly translate to an actionable harm in the U.S. legal system. In particular, injuries that may have resulted from prior generational …

At The Intersection Of Religious Organization Missions And Employment Laws: The Case Of Minister Employment Suits, Jarod S. Gonzalez

Catholic University Law Review

Reviewing the intersection of a religious organization’s right to select employees based on their goals and mission and modern employment law, this article argues that the analysis of the ministerial exception will depend on the type of suit brought. Specifically, the Article identifies five analytical categories: (1) employment discrimination/employment retaliation claims; (2) breach of employment contract claims; (3) whistleblower claims; (4) tort claims; and (5) miscellaneous claims.

The Article begins by describing the ministerial exception and ecclesiastical abstention doctrines that exist under the First Amendment through the lens of the Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church & School …

The Affordable Care Act Is Not Tort Reform, Andrew F. Popper

Catholic University Law Review

On March 23, 2010, President Obama signed The Patient Protection and Affordable Care Act (PPACA). Prior to the enactment of the PPACA, Congress held several hearings focused on subrogation and relaxation of collateral source restrictions as well as caps on damages in an effort to promote tort reform. While the ACA included provisions on medical liability reform, the suggested tort reform was thwarted, and the ACA had no actual legal effect on limiting medical malpractice liability. This article argues that the reality is that the PPACA has done nothing to change the admissibility of collateral sources nor has it enhanced …

"Should" Or "Must"?: Distinguishing Mandates From Guidelines In Tort Claims Contexts, A.G. Harmon

Scholarly Articles

This Article intends to bring some order to the discussion, both by

means of explaining what the science of the language arts—linguistics—says

about the matter, and by explaining how that science comports with what courts

think they are doing when they determine a government statement is, or is not,

a mandate. Linguists have considered language crimes before, relating to

perjury, bribery, and criminal threats, and I myself have conducted a linguistic

analysis with regard to the civil law Tarasoff context (i.e., “duties to warn”),

but a linguistic analysis of mandates as opposed to guidelines has not yet been

attempted.

Part …

Illegal Agreements And The Lesser Evil Principle, Chunlin Leonhard

Catholic University Law Review

When parties enter into an illegal agreement and bring a dispute arising from the transaction before a court, the court finds itself in a difficult position. The court is faced with two competing interests: the importance of both upholding and protecting the dignity of the law and honoring inherent principles of U.S. contract law - freedom of contract and individual autonomy. There exists a common misconception that courts, when presented with illegal contracts, follow the rule of non-enforcement. However, an examination of case law indicates that courts are instead concerned with the consequences of their choices, and have consistently followed …

Whose Best Interest Is It Anyway?: School Administrators' Liability For Student Injury In Virginia, Alison Landry

Catholic University Law Review

In 2012 the Supreme Court of Virginia declined to recognize a special relationship between a school’s vice principal and the school’s students. Without the third person liability that accompanies special relationships, a vice principal is allowed to put student safety at the bottom of his to-do list. This Note analyzes why the Supreme Court of Virginia’s decision in Burns v. Gagnon should have found that a special relationship existed between a vice principal and his students. Declining to recognize this special relationship has left school administrators with little risk of liability for a student’s harm. This Note discusses the few …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

Scholarly Articles

This Article investigates whether a right to environmental hedonism can be claimed and compensated for when the environment is degraded. Building upon the economic and mathematical uncertainties in assessing any claim for loss of enjoyment of the environment, the Article considers the evaluation of environmental harms ex post through use of restorative damages allowed under the Restatement (Second) of Torts - and concludes that because of the ambiguities in public policy for not only determining what is an appropriate case for an award of restorative damages but also evaluating the nature and the scope of environmental injuries, these damages are …

Of Trees, Vegetation, And Torts: Re-Conceptualizing Reasonable Land Use, L. Daniel Bidwell

Catholic University Law Review

No abstract provided.

Sacrificial Lambs: Compensating First Subscribers To Fda-Approved Medications For Postmarketing Injuries Resulting From Unlabeled Adverse Events, Rodney K. Miller

Catholic University Law Review

No abstract provided.

Defamation In Good Faith: An Argument For Restating The Defense Of Qualified Privilege, A.G. Harmon

Scholarly Articles

Since the 1964 case of New York Times v. Sullivan, the standard for proving defamation has often proven insurmountable to public figure plaintiffs who claim their reputations have been hurt through libel or slander. But, the standard can prove equally insurmountable to "private figure" plaintiffs when a qualified, or "conditional," privilege applies. Such privileges, intended to further the social policy of candor on certain proscribed occasions, can be claimed regarding otherwise questionable conversations as long as the dialogue is made: 1) in good faith; 2) about a subject in which the speaker has an interest or duty; 3) within a …

Please Watch Your Language!: The Chronic Problem Of Assumption Of Risk, Dale L. Moore

Catholic University Law Review

No abstract provided.