Law Commons^™

Destroying Defamation, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories that almost every news story is, in fact, “Fake News,” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it is almost impossible for a plaintiff to prove the elements of defamation.

To establish defamation, a plaintiff must show defendant published an assertion of fact that is false and damages the plaintiff's reputation Hyperbolic language or other indications that …

Doe V. Nestle, S.A.: Chocolate And The Prohibition On Child Slavery, Megan M. Coppa

Pace International Law Review

West Africa is presently home to approximately 1.5 million acres of cocoa farmland, which subsequently produces 70% of the world’s current chocolate supply. Côte d’Ivoire, also known as the Ivory Coast, is one of the largest cocoa producing countries within West Africa.

The increase of farmland and the need to control the deteriorating conditions have always created a demand for farm workers. Regrettably, more than 1.5 million cocoa farm workers in West Africa are currently children. These child workers are exposed to hazardous dust, flames, smoke, and chemicals, are required to utilize dangerous tools that they are not properly trained …

Scientific Gerrymandering & Bifurcation, Katrina F. Kuh, Megan Edwards, Frederick A. Mcdonald

Elisabeth Haub School of Law Faculty Publications

Environmental litigation must often examine the propriety of corporate conduct in areas of scientific complexity. In the second generation of climate nuisance suits, for example, allegations of corporate participation in the climate disinformation campaign are woven into plaintiffs’ claims. Toxic tort suits, currently and most notably in the Roundup and PFAS litigation, present another area of environmental litigation grappling with the legal ramifications of alleged corporate deception about scientific information. Toxic tort suits often surface allegations, and in many cases disturbing evidence, of what we term corporate “scientific gerrymandering”— corporate efforts to finesse, slow, or even mislead scientific understanding of …

Teaching With Feminist Judgments, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

This chapter, part of Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Carolina Academic Press 2021), provides an overview of the U.S. Feminist Judgments Project, a collaboration of feminist scholars and lawyers who rewrite significant judicial opinions using feminist methods and reasoning. One of the primary goals of the series of Feminist Judgments books is to demonstrate that the law has a vast, but often unrealized, potential for social justice. The feminist judgment methodology requires the authors of rewritten opinions to act as judges in following the rules of precedent and custom—and to be bound by …

State Public Nuisance Claims And Climate Change Adaptation, Albert C. Lin, Michael Burger

Pace Environmental Law Review

This Article explores the potential for state public nuisance claims to facilitate adaptation, resource protection, and other climate change responses by coastal communities in California. The California public nuisance actions represent just the latest chapter in efforts to spur responses to climate change and attribute responsibility for climate change through the common law. Part II of this Article describes the California public nuisance lawsuits and situates them in the context of common law actions directed against climate change. Part III considers the preliminary defenses that defendants have raised and could raise in the California public nuisance lawsuits, including the existence …

Mass Torts—Maturation Of Law And Practice, Paul D. Rheingold

Pace Law Review

Mass tort litigation has been with us for about fifty years. This is dating the start from the MER/29 litigation in 1964. This field of law and practice has grown year after year, and it shows no sign of abating. At the same time, it can be said that this area of law and procedure has reached a mature stage; the practice is fairly standardized and earlier experiments have either become the model or have been abandoned.

The term “mass tort litigation” (MTL), as used in this article, confines itself to product liability personal injury cases involving similar injuries from …

Value Hypocrisy And Policy Sincerity: A Food Law Case Study, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

t is tempting to say that in 2017 there is a unique problem of hypocrisy in politics, where words and behaviors are so often in opposition. In fact, hypocrisy is nothing new. A robust legal and psychological literature on the importance of procedural justice demonstrates a longstanding concern with developing more just governing processes. One of the important features of this scholarship is that it does not focus only on the consequences of policymaking, in which behaviors, but not words, are relevant. Instead, it respects the intrinsic importance of fair process, lending credence not only to votes but also to …

The Treatment For Malpractice – Physician, Enhance Thyself: The Impact Of Neuroenhancements For Medical Malpractice, Harvey L. Fiser

Pace Law Review

This article will introduce some of the issues and offer some possible guidelines which may eventually guide cases of medical malpractice and medical care in the face of neurointerventions. First, I will briefly address the standard of care in medical malpractice cases in general. Second, I will discuss some of the existing and potential physical and neurological enhancements available for physicians. Finally, I will explore how these neurointerventions could alter the standards for medical malpractice for both the enhanced doctors and the entire medical profession.

Paterno V. Laser Spine Institute: Did The New York Court Of Appeals' Misapplication Of Unjustified Policy Fears Lead To A Miscarriage Of Justice And The Creation Of Inadequate Precedent For The Proper Use Of The Empire State’S Long-Arm Statute?, Jay C. Carlisle, Christine M. Murphy, Kiersten M. Schramek, Marley Strauss

Elisabeth Haub School of Law Faculty Publications

This article discusses CPLR section 302(a)(1) as applied by the New York State Court of Appeals in Paterno v. Laser Spine Institute. The Paterno Court failed to properly apply a statutory jurisdictional analysis by conflating it with a due process inquiry. Also, the Court unnecessarily balanced the interests of the Empire State's citizens in having a forum for access to justice with unjustified policy fears of potential costs to the state from assertions of in personam jurisdiction. Furthermore, the Court's policy focus4 on the protection of medical doctors from lawsuits and the prevention of “floodgate” litigation which would adversely affect …

Naquin V. Elevating Boats, Llc: The Fifth Circuit’S Improper Expansion Of Jones Act “Seaman Status” Qualification, Timothy M. O'Hara

Pace Law Review

The story began nearly a century ago, when Congress enacted the Jones Act and effectively made “seamen the most generously treated personal injury victims in American law.” But defining a Jones Act seaman has not come easy, as it took the United States Supreme Court seventy five years to arrive at the modern seaman status test. This commentary examines the “tortured history” of the Jones Act, how qualification for the statute’s protections has evolved, the modern seaman status test, and the implications of the Fifth Circuit’s recent application thereof. Section II gives a brief history and explanation of maritime law …

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen Marks

Pace Law Review

In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …

“Meet Me Halfway”: Arm Wrestling And The Law, Thomas M. Byron

Pace Intellectual Property, Sports & Entertainment Law Forum

Most law review articles are very serious, and with good reason. They discuss important, world-changing matters like the role and magnitude of executive power, the limits of Constitutional rights, the boundaries of international law, and the vagaries of civil procedure. This Article has no such world-changing or reverent pretentions; it instead takes a light-hearted view of a fairly marginal legal topic: arm wrestling. To provide a spine for the discussion, the Article leans heavily on the 1980s movie Over the Top – a movie about arm wrestling, trucking, and child custody - to provide examples of arm wrestling content with …

An Analysis Of New York State’S Flawed Recovery Scheme In Prenatal Malpractice Actions: Why A Claim Of Nied Should Be Available To Plaintiffs, Amanda Campo

Pace Law Review

Prior to 2006 mothers could not bring a wrongful death action on behalf of their stillborn child, nor could they bring any personal cause of action, absent a physical injury independent from the unsuccessful birth itself. In 2006, the New York Court of Appeals attempted to fill this gap in the case of Broadnax v. Gonzalez. This Note will analyze whether Broadnax successfully filled this recovery gap. Parts II, III, and IV will discuss the history of a mother’s failed attempts to gain recovery for the death of her stillborn child. Part V will discuss Broadnax. I will argue that …

When Are Damages Tax Free?: The Elusive Meaning Of “Physical Injury”, Ronald H. Jensen

Elisabeth Haub School of Law Faculty Publications

Part I of this article traces the evolution in the tax treatment of litigation damages from 1918 through the enactment of the 1996 Amendments and reviews the various rationales that have been offered for such treatment. In Part II, I set forth a number of hypothetical cases illustrating some of the issues created by the 1996 Amendments. In Parts III through Part VI, I set forth my analyses of these issues. Finally, In Part VII, I critique the 1996 Amendments and make a proposal that would eliminate much of the uncertainty and inequity that the 1996 Amendments created while satisfying …

Scope Of Liability Under The Alien Tort Statute: The Relevance Of Choice Of Law Doctrine In The Aftermath Of Kiobel V. Royal Dutch Petroleum, Jon E. Crain

Pace Law Review

Recently Judge José A. Cabranes, of the United States Court of Appeals for the Second Circuit, issued a decision that drastically undermined the efficacy of the Alien Tort Statute (ATS). Writing for the majority in Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111 (2d Cir. 2010), Judge Cabranes ruled that corporate entities cannot be held liable under the ATS. This Comment will examine the choice-of-law aspect of that decision, and argue that Judge Cabranes erred in interpreting the ATS to mandate application of customary international law (CIL).

The Case For A Criminal Law Theory Of Intentional Infliction Of Emotional Distress, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

Words hurt! Recent news stories about cyber bulling make clear that a word can cause as much pain as a punch. Unfortunately, the law redresses those who suffer injury from harmful speech through a series of seemingly innocuous remedies, including financial remuneration or retribution through minimal criminal penalties. The law stops, however, at imposing the same type of criminal punishment on those who intend to cause emotional harm through words, as it does those who intend to cause physical harm. In other words, legislatures and courts have been unwilling to elevate an actor’s intentional use of harmful words to the …

Tortious Interference With Expectancy Of Inheritance Or Gift--Suggestions For Resort To The Tort, Irene D. Johnson

Elisabeth Haub School of Law Faculty Publications

This article examines the various factual circumstances in which a tort recovery for interference with the expectancy of inheritance or gift might be available, either as the only possible remedy for the disappointed expectant person or as an alternative to a remedy at equity or at probate, and determines, in regard to each circumstance, whether a cause of action in tort should be available. This tort has received recent attention, especially in light of the substantial awards, both compensatory and punitive, in a California Bankruptcy Court, 253 B.R. 550 (Bankr. C.D. Cal 2000), and, on appeal, in the U,S. District …

Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A Blessed Event, Michael T. Murtaugh

Pace Law Review

No abstract provided.

The Road From Nowhere? Punitive Damage Ratios After Bmw V. Gore And State Farm Mutual Automobile Insurance Co. V. Campbell, Andrew C. W. Lund

Elisabeth Haub School of Law Faculty Publications

This article offers a brief introduction to BMW and its immediate aftermath. After the decision was handed down in 1996, scholars found that punitive damage award ratios were still arbitrary. In Part III, one hypothesis given to explain this result--that not enough time had elapsed since BMW to allow lower courts to come to grips with its lessons--is examined and dismissed after observing how post-BMW courts continued to give shape to the guideposts well beyond 1996. Part IV offers a different hypothesis, which better explains why punitive damage awards behaved arbitrarily. The cause of ratios' weakness lay in the BMW …

Strict Products Liability Under Restatement (Second) Of Torts § 402a: "Don't Throw Out The Baby With The Bathwater", M. Stuart Madden

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Products Liability And Preemption: A Judicial Framework, Barbara L. Atwell

Elisabeth Haub School of Law Faculty Publications

Part I of this article examines the preemption doctrine while Part II explores the development of the law of products liability. Part III analyzes products liability cases in which the preemption defense has been raised—focusing on cases involving cigarettes and automobiles—and examines the approaches taken by the courts. Finally, Part IV articulates a framework for courts to use when the preemption defense is asserted in products liability cases.

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

This Article surveys the most significant torts cases decided in the courts of New York State during the Survey year. Only cases which challenged existing law, modified longstanding doctrine, or announced new decisional law have been included. While 1989 was not a year of signal change for the law of torts, a number of cases deserve examination and analysis.

Can It Really Be Unconstitutional To Regulate Product Safety Information?, David S. Cohen

Elisabeth Haub School of Law Faculty Publications

In this paper, I examine the impact of two Supreme Court decisions on information-based product safety regulation which, in a variety of guises in Canada, can be said to restrict manufacturers', distributors' and marketers' ability to "express" themselves. In the end, I conclude that, if one appreciates the justification for and the processes by which this kind of product safety regulation is instituted, there is only a small risk that the current regulatory activity will be held unconstitutional. When one takes into account the degree of co-operation between business and government in establishing the content of most regulatory activity and …

Absolute Immunity For State-Law Torts Under Westfall V. Erwin: How Much Discretion Is Enough?, Karl R. Rábago

Elisabeth Haub School of Law Faculty Publications

The plaintiff who seeks to maintain an action in tort against a federal employee has basically two choices. First, after complying with various procedural requirements, the plaintiff may initiate suit under the Federal Tort Claims Act (FTCA) against the United States. The act is a waiver of sovereign immunity and, in spite of the existence of exceptions to its coverage, has generally been interpreted broadly.

The other alternative available to the plaintiff is a suit against the employee in his individual capacity based upon either state-law or constitutional tort. One of the employee's first lines of defense against such actions …

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

During the 1986 Survey year, a number of cases of interest to practitioners were decided by the courts of New York. There have been several new legislative enactments which will also have a direct impact upon the practice of tort law. These enactments are analyzed elsewhere in this Survey volume. Following past practice, cases of the greatest significance will be highlighted, as well as those oddities which make tort law a stage for the human comedy.

The Duty To Warn In Products Liability: Contours And Criticism, M. Stuart Madden

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Civil Practice: Comparative Negligence, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

Recent decisional law by the Court of Appeals has placed new limits on the applicability of article 14-A to some assumption of risk cases, to matters involving some labor law violations, and to violations of legal prohibitions. These limitations are important to the practitioner representing clients who seek to benefit from New York's comparative negligence statute.

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

While the last several years have witnessed significant change in the field of tort law, viewed as advancement by some and regression by others, 1985 was a relatively stable year, at least in the courtroom. With a sometimes real, sometimes imagined, crisis in the liability insurance field, the drive to change, reform, improve, and re-package the law of civil wrongs has been in full swing. A myriad of legislative proposals followed a continued public debate, fueled by high pressure advertising campaigns, about the societal cost of the common law tort system. Local governments threatened to close parks and police departments; …

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

About the only thing a teacher of tort law can be sure of is that each year he or she will witness new efforts, some successful and most not, to extend the reach and effect of the law of private wrongs. Last year's Survey article analyzed a wide range of tort issues and while New York courts handed down fewer tort opinions of broad implication this Survey year, there is much to study and to apply in future litigation. As always, tort law is a somewhat quixotic but nonetheless valid barometer of shifting societal and judicial values about the nature …

Torts, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

Tort law remains the most exciting and challenging area of private law to teach and practice. Tort law reflects, sometimes elegantly, often crudely, the evolving standards of civil conduct. New York courts last year were, as usual, confronted with litigants seeking to broaden the scope of duty and expand the range of damages. Most decisions conservatively preserved the legal status quo, some ventured forth intellectually. Most of the decisions were sound, but a few cases were wrongly decided.