Law Commons^™

When (And Why) The Levee Breaks: A Suggested Causation Framework For Takings Claims That Arise From Government-Induced Flooding, Charles D. Wallace

William & Mary Law Review

In 1968, the United States Army Corps of Engineers finished constructing the seventy-six-mile Mississippi River-Gulf Outlet (MR-GO) navigational channel. Congress authorized the Army Corps of Engineers to begin construction to create a shipping route between New Orleans and the Gulf of Mexico. However, the MRGO also caused significant erosion and other environmental detriments that greatly increased the risk of flooding around its vicinity. The Army Corps of Engineers learned about many of these detriments and risks through numerous studies it conducted between 1998 and 2005, but never fully addressed them.

Hurricane Katrina eventually showcased the MR-GO’s defects in violent fashion. …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

Compensation At The Crossroads: Autonomous Vehicles & Alternative Victim Compensation Schemes, Tracy Hresko Pearl

William & Mary Law Review

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet wellsuited to handle.

Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently impacts (a) whether manufacturers can afford to produce these vehicles or whether …

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

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 …

Campbell-Ewald Co. V. Gomez: Diminishing The Derivative Sovereign Immunity Doctrine And The Social Costs Of Increasing Liability To Government Contractors, W. Logan Lewis

William & Mary Law Review

No abstract provided.

The Information-Forcing Dilemma In Damages Law, Tun-Jen Chiang

William & Mary Law Review

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tools to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of damages, this means a rule requiring plaintiffs to prove the value of a loss. But courts will often face a situation where a plaintiff can clearly prove the existence of a loss, yet cannot …

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 …

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

William & Mary Law Review

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.

Tort, Not Contract: An Argument For Reevaluating The Economic Loss Rule And Classifying Building Damage As "Other Property" When It Is Caused By Defective Construction Materials, J. Brandon Sieg

William & Mary Law Review

No abstract provided.

The Business Of Suing: Determining When A Professional Plaintiff Should Have Standing To Bring A Private Enforcement Action, Brandon Murrill

William & Mary Law Review

No abstract provided.

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

William & Mary Law Review

This Article considers the broad range of "tort experiments" states have undertaken in recent years, as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, while states have limited tort rights and remedies in the products liability and personal injury areas in recent years, they have at the same time increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, Congress has eliminated state tort law entirely in targeted areas without replacing it with corresponding federal remedies. The Supreme …

The Continuing Drift Of Federal Sovereign Immunity Jurisprudence, Gregory C. Sisk

William & Mary Law Review

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the …

All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang

William & Mary Law Review

No abstract provided.

The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman

William & Mary Law Review

In recent years, class members have been afforded delayed, or "back-end," opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may afford only limited rights to sue outside the confines of the class action. For example, opt-out plaintiffs may be permitted to seek compensatory, but not punitive damages. Does the federal court that approved the settlement have authority to enjoin back-end opt-out plaintiffs from seeking relief in state court that exceeds the limits built into the back-end opt-out right?

Three sets of curious complications may arise if the federal …

Introductory Remarks: Explaining Tort Law, Michael S. Green

William & Mary Law Review

No abstract provided.

Derailing The Gravy Train: A Three Pronged Approach To End Fraud In Mass-Tort Medical Diagnosing, Matthew Mall

William & Mary Law Review

No abstract provided.

Sleight Of Hand, Benjamin C. Zipursky

William & Mary Law Review

No abstract provided.

A Products Liability Theory For The Judicial Regulation Of Insurance Policies, Daniel Schwarcz

William & Mary Law Review

Many insurance law commentators believe that judges should regulate the substance of insurance policies by refusing to enforce insurance policy terms that are exploitive or otherwise unfair. The most common guide for the judicial regulation of insurance policies is the "reasonable expectations doctrine," which requires courts to disregard coverage restrictions that are beyond insureds' reasonable expectations unless the insurer specifically informed the insured about the restriction at the time of purchase. This Article argues that although the judiciary has a potential role to play in policing insurance policy terms, that role should not be defined by reference to consumers' reasonable …

The Promise Of Internet Intermediary Liability, Ronald J. Mann, Seth R. Belzley

William & Mary Law Review

The Internet has transformed the economics of communication, creating a spirited debate about the proper role of federal, state, and international governments in regulating conduct related to the Internet. Many argue that Internet communications should be entirely self-regulated because such communications cannot or should not be the subject of government regulation. The advocates of that approach would prefer a no-regulation zone around Internet communications, based largely on the unexamined view that Internet activity is fundamentally different in a way that justifies broad regulatory exemption. At the same time, some kinds of activity that the Internet facilitates undisputedly violate widely shared …

Putting The Plaintiff Class' Needs In The Lead: Reforming Class Action Litigation By Extending The Lead Plaintiff Provision Of The Private Securities Litigation Reform Act, Kendra S. Langlois

William & Mary Law Review

No abstract provided.

Outlaws And Outlier Doctrines: The Serious Misconduct Bar In Tort Law, Joseph H. King Jr.

William & Mary Law Review

No abstract provided.

Regulating Corporate Human Rights Abuses: Is Unocal The Answer?, Pia Zara Thadhani

William & Mary Law Review

No abstract provided.

Rolling The "Barrel" A Little Further: Allowing Res Ipsa Loquitur To Assist In Proving Strict Liability In Tort Manufacturing Defects, Matthew R. Johnson

William & Mary Law Review

No abstract provided.

Reconceptualizing Federal Preemption Of Tort Claims As The Government Standards Defense, Lars Noah

William & Mary Law Review

No abstract provided.

Punitive Damage "Overkill" After Txo Production Corp. V. Alliance Resources: The Need For A Congressional Solution, Jonathan Hadley Koenig

William & Mary Law Review

No abstract provided.

Chapter 13'S Liberal Discharge Provisions And "Willful And Malicious" Tort Judgments: Creditor Classification As A Means Of Accounting For The Debtor's Egregious Action, Robert L. Miller

William & Mary Law Review

No abstract provided.

Beyond Consolidation: Postaggregative Procedure In Asbestos Mass Tort Litigation, Linda S. Mullenix

William & Mary Law Review

No abstract provided.

Balance, Band-Aid, Or Tourniquet: The Illusion Oo Qualified Immunity For Federal Officials, H. Allen Black

William & Mary Law Review

No abstract provided.

Reconsidering Efficient Tort Rules For Personal Injury: The Case Of Single Activity Accidents, Jennifer H. Arlen

William & Mary Law Review

No abstract provided.