What’S In A Name?: Proving Actual Damages For Reputational Harm In Texas Defamation Cases Will Only Get Harder, 2018 Southern Methodist University
What’S In A Name?: Proving Actual Damages For Reputational Harm In Texas Defamation Cases Will Only Get Harder, Austin Brakebill
SMU Law Review
No abstract provided.
Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, 2018 South texas College of Law
Keep Suing All The Lawyers: Recent Developments In Claims Against Lawyers For Aiding & Abetting A Client’S Breach Of Fiduciary Duty, Katerina P. Lewinbuk
St. Mary's Journal on Legal Malpractice & Ethics
Lawyers have increasingly become subject to liability under various legal theories, ranging from traditional legal malpractice or negligence liability claims to various third-party actions. Most recently, state and federal courts across the country have recognized attorney liability for aiding and abetting a client’s breach of fiduciary duty. This Article will address the current status of the cause of action for a lawyer’s aiding and abetting her client’s breach of fiduciary duty, explain the commonalities and distinguish nuances as outlined by particular states, examine recent decisions by federal courts that have recognized the cause of action, and culminate ...
Tort Liability And Unawareness, 2018 University of Exeter
Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
Unawareness is a form of bounded rationality where a person fails to conceive all feasible acts or consequences or to perceive as feasible all conceivable act-consequence links. We study the implications of unawareness for tort law, where relevant examples include the discovery of a new product or technology (new act), of a new disease or injury (new consequence), or that a product can cause an injury (new link). We argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.
Accidents And Aggregates, 2018 College of William & Mary Law School
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 ...
Crashed Software: Assessing Product Liability For Software Defects In Automated Vehicles, Sunghyo Kim
Duke Law & Technology Review
Automated vehicles will not only redefine the role of drivers, but also present new challenges in assessing product liability. In light of the increased risks of software defects in automated vehicles, this Note will review the current legal and regulatory framework related to product liability and assess the challenges in addressing on-board software defects and cybersecurity breaches from both the consumer and manufacturer perspective. While manufacturers are expected to assume more responsibility for accidents as vehicles become fully automated, it can be difficult to determine the scope of liability regarding unexpected software defects. On the other hand, consumers face new ...
The Privacy Of The Public Schools, 2018 University of Maryland Francis King Carey School of Law
The Privacy Of The Public Schools, Emily Suski
Maryland Law Review
This Article compares the liability of the public schools with that of families for harms to children in their care. Families serve as an apt vehicle for comparative analysis because families’ and schools’ responsibilities for children overlap substantially. Despite these overlapping responsibilities, however, the law allows schools to evade liability for harms to children and penalizes families for the same or similar harms.
Drawing on feminist theory on privacy and the public/private divide, this Article argues that the limits of public school liability mean they have privacy. Feminist theorists identify privacy as freedom from regulation and intrusion into decision-making ...
The Regulatory Sweet Spot For Autonomous Vehicles, 2018 NYU School of Law
The Regulatory Sweet Spot For Autonomous Vehicles, Mark A. Geistfeld
New York University Public Law and Legal Theory Working Papers
Although federal legislation governing highly automated vehicle (“HAV”) technology has yet to be enacted, developments so far strongly indicate that Congress will finally settle upon a framework that establishes the same roles for federal regulatory law and state tort law that now exist for conventional motor vehicles. Like the HAV bills pending in Congress, the National Traffic and Motor Vehicle Safety Act of 1966 contains both an express preemption provision along with a saving clause, which says that “[c]ompliance with” a federal safety standard “does not exempt any person from any liability under common law.” These two provisions of ...
Cost-Benefit Analysis Outside Of Welfarism, 2018 NYU School of Law
Cost-Benefit Analysis Outside Of Welfarism, Mark A. Geistfeld
New York University Law and Economics Working Papers
Welfarism is the principle that the goodness of a social state is an increasing function of individual welfare and does not depend on anything else. As Gregory Keating convincingly argues in the lead article for this symposium, welfarism cannot account for important normative differences among different types of welfare losses or costs. Welfarism entails that all welfare losses and gains—regardless of their source—are to be rendered fungible and then compared within a cost-benefit analysis (CBA) of the welfare changes. According to Keating, liberal egalitarian principles such as equal freedom or self-determination normatively distinguish bodily injuries from harms to ...
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, 2018 Georgia State University College of Law
A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery
Georgia State University Law Review
In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took ...
Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?, 2018 Georgia State University College of Law
Whose Sperm Is It Anyways In The Wild, Wild West Of The Fertility Industry?, Tatiana E. Posada
Georgia State University Law Review
Imagine a couple that is unable to conceive a child naturally. Luckily, they had the money and resources available to them to conceive a child through assisted reproductive technology (ART), so they decided to start their family through the use of intrauterine insemination. They selected a sperm bank and began the arduous process of selecting a sperm donor who fit the desired traits and characteristics for their child. The sperm bank matched them with an anonymous donor, Donor 9623, and assured the couple that the donor was “a healthy male with an IQ of 160, a bachelor’s of science ...
Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", 2018 University of Maine School of Law
Employees Or Independent Contractors: A Call For Revision Of Maine's Unemployment Compensation "Abc Test", Christopher J. Cotnoir
Maine Law Review
The Maine Employment Security Law governs whether one person performing services for another is an independent contractor or an employee for unemployment tax purposes. It requires many employers to pay unemployment taxes on individuals who, under the usual common law rules governing the employer-employee relationship, are independent contractors. This result, caused partly by the structure of the statute and partly by judicial interpretation, has the effect of discouraging business expansion, limiting entrepreneurial opportunities, and ultimately, hampering statewide economic development. This Comment first provides the historical background of unemployment compensation legislation at the federal and state levels. Employer liability and employee ...
Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, 2018 University of California, Berkeley School of Law
Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave
Boston College Law Review
Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s ...
The Road Beyond Kiobel: The Fifth Circuit's Decision In Adhikari V. Kellogg Brown & Root, Inc. And Its Implications For The Alien Tort Statute, Vasundhara Prasad
Boston College Law Review
On January 3, 2017, in Adhikari v. Kellogg Brown & Root, Inc., the U.S. Court of Appeals for the Fifth Circuit held that the Alien Tort Statute (“ATS”) did not provide jurisdiction for claims brought against a U.S. military contractor for torts committed in Iraq. In foreclosing plaintiffs’ claims, the Fifth Circuit held that the presumption against the ATS’s extraterritorial application barred claims for injuries occurring outside the United States’ territory. In so ruling, the court created a circuit split with the Fourth Circuit, which in Al Shimari v. CACI Premier Technology, Inc. held that the ATS provided ...
Atlantic Richfield Company V. Montana Second Judicial District Court, 2018 Alexander Blewett III School of Law at the University of Montana
Atlantic Richfield Company V. Montana Second Judicial District Court, Molly Kelly
Public Land and Resources Law Review
Landowners in Opportunity, Montana sought restoration damages from ARCO, Anaconda Copper Mining Company’s successor, to their property from over a century of processing ore at the Anaconda Smelter. ARCO argued that CERCLA preempted and barred any claim for restoration damages. The Montana Supreme Court held: landowners could bring their state common law claims seeking restoration damages; the state district court had subject matter jurisdiction; and landowners’ proposed restoration fund did not challenge EPA’s selected remedy under CERCLA.
Reputational Economies Of Scale, 2018 USC Law School
Reputational Economies Of Scale, Daniel M. Klerman
University of Southern California Legal Studies Working Paper Series
For many years, most scholars have assumed that the strength of reputational incentives is positively correlated with the frequency of repeat play. Firms that sell more products or services were thought more likely to be trustworthy than those that sell less because they have more to lose if consumers decide they have behaved badly. That assumption has been called into question by recent work that shows that, under the standard infinitely repeated game model of reputation, reputational economies of scale will occur only under special conditions, such as monopoly, because larger firms not only have more to lose from behaving ...
Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, 2018 University of Maine School of Law
Maine Physician Practice Guidelines: Implications For Medical Malpractice Litigation, Jennifer S. Begel
Maine Law Review
This Article assesses the use of physician practice guidelines as a vehicle for medical malpractice tort reform and focuses upon the State of Maine's legislation incorporating physician practice parameters into the defense of medical malpractice litigation. The Maine Medical Liability Demonstration Project (the “Demonstration Project”) legislatively adopts practice guidelines in four different medical specialties and allows physicians in those specialties to assert compliance with the applicable guideline as an affirmative defense. The affirmative defense of compliance with such guidelines has been touted as a means of protecting physicians from, and decreasing the costs associated with, medical malpractice litigation. While ...
Protecting Discretion: Judicial Interpretation Of The Discretionary Function Exception To The Federal Tort Claims Act, 2018 University of Maine School of Law
Protecting Discretion: Judicial Interpretation Of The Discretionary Function Exception To The Federal Tort Claims Act, Donald N. Zillman University Of Maine School Of Law
Maine Law Review
In 1996 the Federal Tort Claims Act turns fifty. Few statutes reach the half-century mark only slightly amended and with their primary purposes still intact. The Federal Tort Claims Act is one such rare statute. The purpose of the Federal Tort Claims Act (FTCA) was to make the United States liable for the torts of its employees committed in the scope of their employment. Today that sounds commonplace. Half a century ago, however, a considerable legislative effort was needed to overturn the doctrine of sovereign immunity that forbade the recovery of tort damages against the United States. Congress's rejecting ...
The Unsettling Effect Of Maine Law On Settlement In Cases Involving Multiple Tortfeasors, 2018 University of Maine School of Law
The Unsettling Effect Of Maine Law On Settlement In Cases Involving Multiple Tortfeasors, Arlyn H. Weeks
Maine Law Review
When more than one person or entity causes injury to another, the multiple tortfeasors are jointly and severally liable to the injured party under Maine law. Maine has also provided since 1965 for comparison of the negligence of plaintiffs and defendants so that a plaintiff may not recover if his causative negligence is found to have equaled or exceeded that of the defendant. In addition, title 14, section 156 of the Maine Revised Statutes gives to each defendant the right to request that the jury allocate percentages of fault “contributed by each defendant.” Finally, title 14, section 163 of the ...
Gratuitous Promises: Overseeing Athletic Organizations And The Duty To Care, 2018 Villanova University Charles Widger School of Law
Gratuitous Promises: Overseeing Athletic Organizations And The Duty To Care, Sam C. Ehrlich
Jeffrey S. Moorad Sports Law Journal
No abstract provided.
Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, 2018 University of Texas School of Law
Gossip And Gore: A Ghoulish Journey Into A Philosophical Thicket, Sean Hannon Williams
Michigan Law Review
A review of Don Herzog, Defaming the Dead.