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Crime Spectators And The Tort Of Objectification, Amelia J. Uelmen 2017 University of Massachusetts School of Law

Crime Spectators And The Tort Of Objectification, Amelia J. Uelmen

University of Massachusetts Law Review

Reports of how some bystanders interact with victims on the scene of an emergency are shocking. Instead of assisting or calling for help, these individuals take pictures or recordings of the victims on their cell phones. This Article concentrates on the question of whether such an interaction with a victim might in certain circumstances constitute a distinct and legally actionable harm. This Article proposes a new tort: exploitative objectification of a person in need of emergency assistance. It works to articulate the moral and legal foundations for an argument that treating a person in need of emergency assistance as an ...


The Original Source Of The Cause Of Action In Federal Courts: The Example Of The Alien Tort Statute, Anthony J. Bellia, Bradford R. Clark 2017 Notre Dame Law School

The Original Source Of The Cause Of Action In Federal Courts: The Example Of The Alien Tort Statute, Anthony J. Bellia, Bradford R. Clark

Anthony J. Bellia

Judges and scholars have long debated the legitimacy and contours of federal common law causes of action — actions created neither by Congress nor by state law. The question of federal judicial power to recognize federal common law causes of action arises in a range of contexts in the field of federal courts, including with respect to whether federal courts may recognize an implied right of action for the violation of a constitutional or statutory provision that does not specifically create one. Recently, the power of federal courts to recognize federal common law causes of action has emerged as a key ...


Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka 2017 Hokkaido University of Education

Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka

Cleveland State Law Review

Using data from punitive damages decisions of U.S. federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following: (1) there is no apparent statistical difference between the levels of jury and judge awards; (2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards; (3) with regard to the cases involving remittitur, or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards; (4) as the levels of compensatory awards ...


Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler 2017 Electronic Privacy Information Center

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation ...


Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon 2017 Boston University School of Law

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold, Wendy J. Gordon

Faculty Scholarship

In a recent article, Patrick Goold argues for five sub-torts to be recognized in copyright, including inter alia protections for privacy, reputation, and 'creative control.' See Patrick R. Goold, Unbundling the 'Tort' of Copyright Infringement, 102 VA. L. REV. 1833 (2016). He suggests that standards for both infringement and fair use might be profitably tailored to each sub-tort. In this Reply I explore Goold's arguments. I address issues such as: how copyright cases implicitly define cause-in-fact; potential relevance of the plagiarism/copyright distinction; and what implications (if any) for interpreting federal copyright law might flow from the statutory changes ...


Forty-Eight States Are Probably Not Wrong: An Argument For Modernizing Georgia’S Legal Malpractice Statute Of Limitations, Ben Rosichan 2017 Georgia State University College of Law

Forty-Eight States Are Probably Not Wrong: An Argument For Modernizing Georgia’S Legal Malpractice Statute Of Limitations, Ben Rosichan

Georgia State University Law Review

The legal profession is largely self-regulated, and each state has a bar association charged with creating and enforcing basic standards of professionalism and competence for attorneys. Unfortunately, attorneys do not always adhere to these standards. In Georgia, the State Bar can address attorney misconduct through remedial measures up to and including disbarment. The State Bar cannot, however, compensate wronged clients through monetary damages.Thus, some wronged clients must resort to a lawsuit for legal malpractice where a financial recovery is necessary to make the client whole again.

The statute of limitations for legal malpractice claims should not be so restrictive ...


The Anti-Deference Pro-Preemption Paradox At The U.S. Supreme Court: The Business Community Weighs In, Catherine M. Sharkey 2017 NYU School of Law

The Anti-Deference Pro-Preemption Paradox At The U.S. Supreme Court: The Business Community Weighs In, Catherine M. Sharkey

New York University Law and Economics Working Papers

Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies. But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look. The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation ...


Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French 2017 Penn State Law

Hurricanes, Fraud, And Insurance: The Supreme Court Weighs In On, But Does Not Wade Into, The Concurrent Causation Conundrum In State Farm Fire And Casualty Company V. Rigsby, Chris French

Christopher C. French

In the December 6, 2016 Supreme Court decision, State Farm v. Rigsby, a homeowner’s house was damaged by Hurricane Katrina. The homeowner had homeowners insurance with State Farm and a flood insurance policy that was administered by State Farm on behalf of the federal government. The claims adjusters assigned by State Farm to handle the homeowner’s claim allegedly were instructed by State Farm to misclassify wind damage as flood damage in order to shift State Farm’s own liability for the loss to the federal government. The claims handlers filed a lawsuit against State Farm under the False ...


Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez 2017 Barry University School of Law

Riparian Rights In A Polluted World: Property Right Or Tort?, Daniel P. Fernandez

Barry Law Review

No abstract provided.


Toward The Search For The Proper Liability Rule For Harms Resulting From Sources Of Risk: A Different Approach To The Choice Between Strict Liability And Fault-Based Regime, Wen-Hsuan Yang 2017 Indiana University Maurer School of Law

Toward The Search For The Proper Liability Rule For Harms Resulting From Sources Of Risk: A Different Approach To The Choice Between Strict Liability And Fault-Based Regime, Wen-Hsuan Yang

Theses and Dissertations

An important issue in Taiwan today concerns the rising tension between strict liability and negligence. Article 191-3 of the Civil Code of Taiwan imposes a fault-based standard of liability on persons conducting dangerous activities. On the other hand, the majority of scholars believe that to afford greater protection, this rule should be changed into a strict liability rule.

Traditionally, three arguments make it preferable to impose strict liability under certain circumstances. First, strict liability induces more safety incentives on the part of the defendant. Second, fairness requires that one who benefits from conducting dangerous activities should bear the risk of ...


Leaders And Laggards: Tackling State Legislative Responses To The Youth Sports Concussion Epidemic, Chris Lau 2017 Fordham University School of Law

Leaders And Laggards: Tackling State Legislative Responses To The Youth Sports Concussion Epidemic, Chris Lau

Fordham Law Review

In 2009, state legislatures began to enact concussion safety laws to protect youth athletes suffering from traumatic brain injuries sustained during the course of play. By 2014, all fifty states and the District of Columbia had enacted some form of youth sports concussion legislation. Yet these statutes vary widely across states in terms of the protections offered to youth athletes. This Note provides an analysis of state legislation by classifying all fifty-one statutes among distinct tiers ranging from least to most protective.


‘Relational Privacy’ & Tort, Stuart Hargreaves 2017 College of William & Mary Law School

‘Relational Privacy’ & Tort, Stuart Hargreaves

William & Mary Journal of Women and the Law

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 ...


Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller 2017 University of Maine School of Law

Obesity Prevention Policies At The Local Level: Tobacco's Lessons, Paul A. Diller

Maine Law Review

For at least a decade, commentators have speculated that obesity is the next tobacco, a public health scourge that might nonetheless offer a gold mine to ambitious plaintiffs’ lawyers. Successful lawsuits, as in the tobacco context, might spur the food industry to reform its practices so as to help reduce the alarmingly high national obesity rate. The obesity narrative, however, has not played out accordingly to the same script as tobacco. Relatively quick action by most state legislatures immunized the food industry to tort lawsuits seeking obesity-related damages, and the scant judicial opinions on the issue have skeptically assessed plaintiffs ...


The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely 2017 Seattle University School of Law

The Home-Field Disadvantage: Tort Liability And Immunity For Paid Physicians During Disasters Within The Pacific Northwest Emergency Management Arrangement Member States, Stephen Seely

Seattle University Law Review

This Note identifies how the Pacific Northwest Emergency Management Arrangement member states of Alaska, Idaho, Oregon, and Washington apply tort liability and immunity to medical professionals during times of disaster. This Note also identifies an example statutory scheme that, if enacted, will provide equal protection to all physicians who provide care to disaster victims, regardless of their local or out-of-state status.


Private Rights And Private Wrongs, Andrew S. Gold 2017 DePaul University College of Law

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.


A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney 2017 Texas A&M University School of Law

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide ...


Mass Torts And The Pursuit Of Ethical Finality, Lynn A. Baker 2017 University of Texas Law School

Mass Torts And The Pursuit Of Ethical Finality, Lynn A. Baker

Fordham Law Review

Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate.


Mass Torts And The Pursuit Of Ethical Finality, Lynn A. Baker 2017 University of Texas Law School

Mass Torts And The Pursuit Of Ethical Finality, Lynn A. Baker

Fordham Law Review

Judges, lawyers, and academics largely agree that comprehensive finality is a central goal of mass tort litigation and settlements. More controversial is whether such finality is normatively preferable, inherently ethically problematic, or can be achieved through nonclass aggregate settlements without running afoul of the existing ethics rules. This Article joins this important debate.


A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney 2017 Texas A&M University School of Law

A Tort In Search Of A Remedy: Prying Open The Courthouse Doors For Legal Malpractice Victims, Susan S. Fortney

Fordham Law Review

Using this broad connotation of justice, this Article questions whether many victims of legal malpractice are denied access to justice. In writing about the regulatory function of legal malpractice as a tort, Professor John Leubsdorf argues that legal malpractice relates to three important functions of the law of lawyering: “[D]elineating the duties of lawyers, creating appropriate incentives and disincentives for lawyers in their dealings with clients and others, and providing access to remedies for those injured by improper lawyer behavior.” Arguably, persons injured by lawyer misconduct are denied access to justice if our civil liability system does not provide ...


Conceptualizing The Intentional Torts, Mark A. Geistfeld 2017 NYU School of Law

Conceptualizing The Intentional Torts, Mark A. Geistfeld

New York University Public Law and Legal Theory Working Papers

According to the most recent draft of the Restatement (Third) of Torts: Intentional Torts to Persons, the intentional torts protect the rightholder’s interests differently from negligence-based rules and strict liability, placing them into a distinct substantive category. This conceptualization, however, does not provide courts with adequate guidance on how to formulate the element of intent. Different formulations can protect the rightholder’s interests differently from negligence and strict liability, so something else must determine the appropriate way to formulate the element of intent.

The draft Restatement’s reasoning can be easily extended to provide a more useful conceptualization of ...


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