Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Contracts (15)
- Civil Law (14)
- Law and Economics (8)
- Comparative and Foreign Law (7)
- Constitutional Law (6)
-
- Dispute Resolution and Arbitration (5)
- Jurisprudence (5)
- Law and Society (5)
- Legal Remedies (5)
- Litigation (5)
- Social and Behavioral Sciences (5)
- Estates and Trusts (4)
- Legal History (4)
- Asian Studies (3)
- Business Organizations Law (3)
- Common Law (3)
- Health Law and Policy (3)
- International and Area Studies (3)
- Labor and Employment Law (3)
- Legislation (3)
- Medical Jurisprudence (3)
- Science and Technology Law (3)
- State and Local Government Law (3)
- Air and Space Law (2)
- Arts and Humanities (2)
- Civil Rights and Discrimination (2)
- Criminal Law (2)
- First Amendment (2)
- Institution
-
- Selected Works (23)
- Maurer School of Law: Indiana University (20)
- SelectedWorks (13)
- William & Mary Law School (11)
- Singapore Management University (5)
-
- The Catholic University of America, Columbus School of Law (3)
- Seattle University School of Law (2)
- Touro University Jacob D. Fuchsberg Law Center (2)
- University of Colorado Law School (2)
- University of Georgia School of Law (2)
- Villanova University Charles Widger School of Law (2)
- West Virginia University (2)
- Claremont Colleges (1)
- Florida A&M University College of Law (1)
- Montclair State University (1)
- New York Law School (1)
- SJ Quinney College of Law, University of Utah (1)
- Schulich School of Law, Dalhousie University (1)
- The Peter A. Allard School of Law (1)
- Trinity College (1)
- University of Missouri-Kansas City School of Law (1)
- University of Pennsylvania Carey Law School (1)
- University of San Diego (1)
- Widener University Delaware Law School (1)
- Publication Year
- Publication
-
- Indiana Law Journal (19)
- Jean M. Eggen (14)
- Research Collection Yong Pung How School Of Law (5)
- Gastón Fernández Cruz (4)
- Renzo E. Saavedra Velazco (4)
-
- William & Mary Law Review (4)
- Yehuda Adar Dr. (4)
- Faculty Publications (3)
- Scholarly Works (3)
- Leysser L. León (2)
- Mashael Alhajeri (2)
- Scholarly Articles (2)
- Seattle University Law Review (2)
- University of Colorado Law Review (2)
- Villanova Law Review (2)
- West Virginia Law Review (2)
- William & Mary Environmental Law and Policy Review (2)
- All Faculty Publications (1)
- All Faculty Scholarship (1)
- Articles by Maurer Faculty (1)
- CMC Senior Theses (1)
- Catholic University Law Review (1)
- Dalhousie Law Journal (1)
- Department of Political Science and Law Faculty Scholarship and Creative Works (1)
- Faculty Works (1)
- Florida A & M University Law Review (1)
- Jeffrey K Gurney (1)
- Jennifer E Spreng (1)
- John G. Culhane (1)
- Jorge Luis Fabra Zamora (1)
- Publication Type
- File Type
Articles 1 - 30 of 99
Full-Text Articles in Torts
Beyond Discrimination: Market Humiliation And Private Law, Hila Keren
Beyond Discrimination: Market Humiliation And Private Law, Hila Keren
University of Colorado Law Review
Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
No abstract provided.
Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro
Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro
Indiana Law Journal
We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …
Minding Accidents, Teneille R. Brown
Minding Accidents, Teneille R. Brown
University of Colorado Law Review
Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct …
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Indiana Law Journal
Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …
Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan
Tort Law, Kumaralingam Amirthalingam, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
This review examines the ten most significant decisions in tort law for 2020. It was an interesting year for the range of significant decisions in tort law handed down by the courts on matters including limitation period, medical negligence, the scope of duty in negligence, breach of confidence, conspiracy, and defamation.
An Analysis Of Applications Of The Restatement (Second) Of Contracts In Connecticut And The Restatement (Second) And (Third) Of Torts In Washington: Realizing The Restatements' Objectives In Practice, Brendan W. Clark
Senior Theses and Projects
No abstract provided.
The Constitutional Tort System, Noah Smith-Drelich
The Constitutional Tort System, Noah Smith-Drelich
Indiana Law Journal
Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.
This Article constructs a framework of the constitutional tort system, …
Banksy: Artist, Prankster, Or Both?, Anna Tichy
Towards A Control-Centric Account Of Tort Liability For Automated Vehicles, Jerrold Tsin Howe Soh
Towards A Control-Centric Account Of Tort Liability For Automated Vehicles, Jerrold Tsin Howe Soh
Research Collection Yong Pung How School Of Law
Existing motor vehicle accident laws are generally described as ‘driver-centric’, since regulatory, liability, and insurance obligations revolve around drivers. This is sometimes taken to imply that they cannot apply to automated vehicles. This article seeks to re-centre the liability discussion around the tortious doctrine of control. It argues centrally that properly understanding legal control as influence over metaphysical risks, rather than physical objects, clarifies that automated vehicles are both legally controllable in theory, despite having no human drivers, and legally controlled in practice, despite their reliance on machine learning. Examining today’s automated driving technology and businesses, this article demonstrates how …
Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim
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 …
Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson
Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson
Indiana Law Journal
Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold
Indiana Law Journal
Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.
This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan
Research Collection Yong Pung How School Of Law
This review examines the ten most significant decisions in tort law for 2020. It was an interesting year for the range of significant decisions in tort law handed down by the courts on matters including limitation period, medical negligence, the scope of duty in negligence, breach of confidence, conspiracy, and defamation.
Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin
Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin
Dalhousie Law Journal
When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …
The Plasticity Of The Body, The Injury, And The Claim: Personal Injury Claims In The Era Of Plastic Surgeries, Adi Youcht
William & Mary Journal of Race, Gender, and Social Justice
The accelerated rise in the number of plastic surgeries has created an inflation of personal injury claims in connection with this cultural practice. This Article, on the one hand, aims to understand how the culture of plastic surgeries affects the tortious area of personal injury law (terms, concepts, goals, procedures, remedies, etc.), and on the other to understand how the significance of plastic surgery popular culture is designated by law. The Article suggests a new paradigm for defining personal injuries in order to face the legal challenges raised by plastic surgery culture and, in light of the culture’s re-designation by …
Applying Tort Law To Fabricated Digital Content, Michael Scott Henderson
Applying Tort Law To Fabricated Digital Content, Michael Scott Henderson
Utah Law Review
Advances in computer technologies have led to the development of new tools to edit and disseminate digital media. Some of these new tools allow users to fabricate digital media by editing video and audio recordings of individuals to make it appear as if they are saying or doing things they have not actually said or done. The rise of these new technologies will lead to litigation by individuals who are harmed by the misuse of fabricated digital media. These individuals will be able to rely on several common law torts—such as defamation, misappropriation, false light, and intentional infliction of emotional …
"Decisional" And "Operational" Negligence, Vincent Ooi
"Decisional" And "Operational" Negligence, Vincent Ooi
Research Collection Yong Pung How School Of Law
This article draws a distinction between “decisional” negligence, which concerns the negligence exhibited by a professional advising his client in a decision to pursue a course of action, and “operational” negligence which concerns the manner in which a professional acts upon his client’s instructions to pursue a course of action. With the advent of Montgomery, the distinction between the two kinds of negligence has been thrown into focus in the context of medical negligence. The distinction is an important one for two reasons: 1) the “standard of care” test to be applied; and 2) the measure of damages.
The Faulty Law And Economics Of The “Baseball Rule”, Nathaniel Grow, Zachary Flagel
The Faulty Law And Economics Of The “Baseball Rule”, Nathaniel Grow, Zachary Flagel
William & Mary Law Review
This Article examines the so-called “Baseball Rule,” the legal doctrine generally immunizing professional baseball teams from liability when spectators are hit by errant balls or bats leaving the field of play. Following a recent series of high-profile fan injuries at Major League Baseball (MLB) games, this century-old legal doctrine has come under increased scrutiny, with both academic and media commentators calling for its abolition. Nevertheless, despite these criticisms, courts have almost uniformly continued to apply the Baseball Rule to spectator-injury lawsuits.
This Article offers two contributions to the ongoing debate surrounding the Baseball Rule. First, it provides new empirical evidence …
Accidents And Aggregates, Lee Anne Fennell
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 …
Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel
Devalued Liberty And Undue Deference: The Tort Of False Imprisonment And The Law Of Solitary Confinement, Efrat Arbel
All Faculty Publications
Despite numerous calls for reform and restraint, solitary confinement continues to be both misused and overused in Canadian prisons. This paper charts a path through which to address such misuse, but analyzing solitary confinement through the tort of false imprisonment. This analysis is new: while some scholars have examined how other branches of tort law can address harms caused by solitary confinement, none have examined the application of this tort. I argue that the tort of false imprisonment provides segregated prisoners with an effective means through which to seek compensation for individual harm. As an intentional tort that is actionable …
Community Versus Market Values Of Life, Robert Cooter, David Depianto
Community Versus Market Values Of Life, Robert Cooter, David Depianto
William & Mary Law Review
Individuals and communities make choices affecting the risk of accidental death. Individuals balance risk and cost in market choices, for example, by purchasing costly safety products or taking a dangerous job for higher pay. Communities balance risk and cost through social norms of precaution, which prescribe how much risk people may impose on others and on themselves. For example, social norms dictate that bicyclists should wear helmets and automobile passengers should wear seat belts. In both cases, the balance between the fatality risk and the cost of reducing it reveals an implicit value of a statistical life, or VSL an …
Everything You Wanted To Know About Breast Augmentation Surgery But Were Afraid To Ask: A Medical - Legal Overview, Samuel D. Hodge, Marshall G. Miles, James B. Pancio
Everything You Wanted To Know About Breast Augmentation Surgery But Were Afraid To Ask: A Medical - Legal Overview, Samuel D. Hodge, Marshall G. Miles, James B. Pancio
Florida A & M University Law Review
This article will provide a medical/legal perspective to breast augmentation surgery. Written by an attorney who teaches anatomy and a plastic surgeon who routinely performs the procedure, it will initially offer a medical analysis of how the procedure is performed along with its attendant risks. The second part will focus on the court cases and legal theories that have arisen when things go wrong. The article will explain the convoluted litigation history involving breast augmentation when suits were common place and a group of experts linked breast implants to the development of autoimmune disease without any real scientific basis to …
Crashing Into The Unknown: An Examination Of Crash Optimization Algorithms Through The Two Lanes Of Ethics And Law, Jeffrey K. Gurney
Crashing Into The Unknown: An Examination Of Crash Optimization Algorithms Through The Two Lanes Of Ethics And Law, Jeffrey K. Gurney
Jeffrey K Gurney
Autonomous vehicles will encounter situations where an accident is truly unavoidable, requiring the vehicle to decide whom or what to hit. In such situations, the vehicle will make difficult ethical decisions based upon its programming — more specifically, how its crash-optimization algorithm is programmed.This Article examines crash-optimization algorithms from an ethical and legal standpoint through the lenses of six moral dilemmas. Ethically, the Article focuses specifically on utilitarian and Kantian ethics. Legally, the Article considers the tort and criminal law implications of crash-optimization algorithms.In addition, the Article discusses whether autonomous vehicles should even make ethical decisions. Concluding that they should …
Impact From Texas Tort Law On Damages Recovered, Richard Samuel Harris
Impact From Texas Tort Law On Damages Recovered, Richard Samuel Harris
CMC Senior Theses
This paper looks at Texas tort law reform to make claims regarding the relationship between Texas tort reform and damages recovered. Starting with reform in 1977, Texas has passed 15 pieces of legislation that, in principle, restrict the damages plaintiffs recover. Most empirical analyses have focused primarily on analyzing behavior resulting from the tort reform. In other cases, research has looked at the impact the most recent reform has had on damages recovered in medical malpractice lawsuits. This paper is the first to study the impact of Texas tort law reform on damages recovered while looking at the entirety of …
Toxic Torts In A Nutshell, Jean Eggen
Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng
Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng
Jennifer E Spreng
Problem-solving is the manifestation of a lawyer’s expertise. Unfortunately, the first year of law school is too highly compartmentalized and often semi-rote-learning experience that does not disturb what are many students’ passive undergraduate school learning strategies. Once taught the same way in law school, students are unlikely to develop the more intellectually sophisticated, relational learning strategies to make the cross-topical and cross-disciplinary connections of which problem-solving expertise is made.
This article argues that horizontally and vertically integrated first-year courses with spiral designs that prioritize honing students’ analytical and problem-solving capacities can break this cycle and prepare students with more self-directed …
Filosofía De La Responsabilidad Extracontractual: Un Llamado Al Debate, Jorge Luis Fabra
Filosofía De La Responsabilidad Extracontractual: Un Llamado Al Debate, Jorge Luis Fabra
Jorge Luis Fabra Zamora
Recientemente se ha comenzado a hablar con fuerza de la “filosofía de la responsabilidad extracontractual” en Latinoamérica. La publicación de varias compilaciones de artículos, la traducción de uno de los textos fundacionales del área, y la publicación del primer libro con una contribución original al debate en español han hecho que este estudio filosófico se consolide un cuerpo académico por mérito propio. Sin embargo, a pesar de estos logros, la idea de una “filosofía de la responsabilidad extracontractual” puede sonar extraña al jurista práctico. Como señala Zipursky, desde la perspectiva de los jueces o abogados, la responsabilidad extracontractual –que se …
Mental Disabilities And Duty In Negligence Law: Will Neuroscience Reform Tort Doctrine?, Jean Eggen
Mental Disabilities And Duty In Negligence Law: Will Neuroscience Reform Tort Doctrine?, Jean Eggen
Jean M. Eggen
Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate …
Juries, Social Norms, And Civil Justice, Jason M. Solomon
Juries, Social Norms, And Civil Justice, Jason M. Solomon
Faculty Publications
At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.
This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …