Law Commons^™

Re-Evaluating The Demise Of The Average, Ordinary, Reasonable Person: Unintended Consequences In The Law Of Nuisance, George P. Smith & William P. Lane

Catholic University Law Review

This Article advocates for a wider pleading use of the tort of nuisance—this, because of the unresolved complexities in the doctrine of causation which continue to plague an effective use of negligence. The confusing awkwardness or, perhaps, the actual demise, of the notion of an average, ordinary, reasonable person so essential to improving negligent wrongdoing has caused aggravation over the years and, indeed, given rise to a state of torbidity.

The judiciary can more easily resolve this evidentiary quagmire by shifting its judicial attention and analysis to the tort of nuisance. With alarming social indicators and statistical projections, confirming the …

Breaking The Silence: Holding Texas Lawyers Accountable For Sexual Harassment, Savannah Files

St. Mary's Journal on Legal Malpractice & Ethics

Following the 2017 exposure of Harvey Weinstein, the #MeToo movement spread rapidly across social media platforms calling for increased awareness of the prevalence of sexual harassment and assault and demanding change. The widespread use of the hashtag brought attention to the issue and successfully facilitated a much-needed discussion in today’s society. However, this is not the first incident prompting a demand for change.

Efforts to bring awareness and exact change in regards to sexual harassment in the legal profession date back to the 1990s. This demonstrates that the legal profession is not immune from these issues. In fact, at least …

The Unconstitutionality Of The Protecting Access To Care Act Of 2017’S Cap On Noneconomic Damages In Medical Malpractice Cases, Kaeleigh P. Christie

Journal of Legislation

No abstract provided.

Palsgraf-Ian Proximate Cause And Insurance Law: The State Of New York Additional Insured Coverage Following Burlington Insurance Co. V. Nyc Transit Authority, Ryan P. Maxwell

Buffalo Law Review

No abstract provided.

Finding A Better Way Around Employment At Will: Protecting Employees’ Autonomy Interests Through Tort Law, William R. Corbett

Buffalo Law Review

No abstract provided.

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 …

A New Look At Contract Mistake Doctrine And Personal Injury Releases, Grace M. Giesel

Nevada Law Journal

No abstract provided.

Privacy's Double Standards, Scott Skinner-Thompson

Washington Law Review

Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. This Article unearths disparate outcomes in public disclosure tort …

Liability For Unintentional Nuisances: How The Restatement Of Torts Almost Negligently Killed The Right To Exclude In Property Law, Jill M. Fraley

West Virginia Law Review

No abstract provided.

Evaluating New York's Notice Of Claim Requirements: Why Naming Individual Municipal Employees Is Not Essential, Daniel Randazzo

St. John's Law Review

(Excerpt)

This Note argues that the approach adopted by the Fourth Department in Goodwin—that General Municipal Law § 50-e does not require the naming of individual municipal employees— is the correct approach in terms of the text of the statute and the purpose behind the statute, as well as policy and practical implications. This Note is comprised of four parts. Part I illustrates the importance of the notice of claim requirement and introduces the text of New York General Municipal Law § 50- e(2). Part II provides a synopsis of the case law on both sides of this issue, …

You Are Not Cordially Invited: How Universities Maintain First Amendment Rights And Safety In The Midst Of Controversial On-Campus Speakers, Alyson R. Hamby

Cornell Law Review

Against a backdrop of national political turmoil, universities have experienced volatile reactions from their student bodies and outsiders in protest of the inflammatory speakers that schools host on their campuses. This Note discusses the tension between First Amendment protections and tort liability in the context of higher education. Specifically, it focuses on the interplay between controversial, on-campus speakers and the violent protests that arise in reaction to them. While examining this interaction, this Note emphasizes the legal duties of academic institutions in facilitating these on-campus speakers while also protecting their students’ constitutional rights and safety. In examining these conflicts, the …

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 …

What Does Law Have To Do With It? The Jury's Role In Cases Alleging Violations Of Law, Custom And Standards, Barbara Kritchevsky

Arkansas Law Review

Rules telling people how to act come from many sources. Statutory law governs a wide range of conduct—driving an auto-mobile, operating a business, building a home. Non-governmental standards reach just as far. Individuals run their businesses in accordance with the law, but also by observing professional standards and industry customs. A hotel owner might look to state or local law to determine how to fence the hotel pool or whether to have a lifeguard on duty. The owner might also decide what to do by looking to industry customs or non-govern-mental safety guidelines, such as those a private body has …

The Future Of Tort Litigation For Undocumented Immigrants In Donald Trump’S “Great” America, Dina Lexine Sarver

University of Miami Race & Social Justice Law Review

No abstract provided.

A Mountain State Transformation: West Virginia's Move Into The Mainstream, Cary Silverman, Richard R. Heath Jr.

West Virginia Law Review

No abstract provided.

One Rule To Compensate Them All, Noam Sher

West Virginia Law Review

The article claims that there is a unique compensation criterion that should be applied in all civil wrongs, inter alia, in tort, intellectual property and property law. Where an individual wrongfully infringes the right of another, the taker should be obliged to repay the victim her damages plus half the additional attributed net profits derived from the taking. This article names this criterion the Golden Rule. The suggested criterion contains three main components. First, for example, a firm increased manufacturing with profits of $1,000, acted wrongfully, and, as a result, someone suffered damages of $600-the taker should pay the victim …

Addicted To Hope: Abating The Opioid Epidemic And Seeking Redress From Opioid Distributors For Creating A Public Nuisance, Nathan R. Hamons

West Virginia Law Review

No abstract provided.

Qualified Immunity At Trial, Alexander A. Reinert

Notre Dame Law Review

Qualified immunity doctrine is complex and important, and for many years it was assumed to have an outsize impact on civil rights cases by imposing significant barriers to success for plaintiffs. Recent empirical work has cast that assumption into doubt, at least as to the impact qualified immunity has at pretrial stages of litigation. This Essay adds to this empirical work by evaluating the impact of qualified immunity at trial, a subject that to date has not been empirically tested. The results reported here suggest that juries are rarely asked to answer questions that bear on the qualified immunity defense. …

Foreword: The Future Of Qualified Immunity, Samuel L. Bray

Notre Dame Law Review

Qualified immunity is not an unqualified success. This defense, which protects officers from liability for damages unless they violate clearly established law, has attracted many critics. Some object to its weak historical foundations, while others find its policy effects to be perverse. Yet the doctrine is shown a special solicitude by the Supreme Court. The Court issues many summary reversals in qualified immunity cases, and the effect of these reversals is all in one direction: they protect, entrench, and extend the defense of qualified immunity. There have been calls for a reconsideration of the doctrine, including in a recent opinion …

A Qualified Defense Of Qualified Immunity, Aaron L. Nielson, Christopher J. Walker

Notre Dame Law Review

In recent years, two new fronts of attack on qualified immunity have emerged. This Essay responds to both and provides a qualified defense of qualified immunity. Part I addresses Will Baude’s argument that qualified immunity finds no support in positive law. Part II turns to Joanna Schwartz’s pioneering empirical work that has been marshaled to question qualified immunity’s effectiveness as a matter of policy.

These two sets of criticisms—a one-two punch that qualified immunity is both unlawful and ineffective—merit serious consideration and further investigation. Neither, however, is dispositive; there are important counterpoints that merit further analysis. But ours is a …

The Intractability Of Qualified Immunity, Alan K. Chen

Notre Dame Law Review

This Essay offers an internal critique of qualified immunity law that explains why these problems remain intractable and why, unfortunately, there is little hope for resolution of the doctrine’s central dilemmas, short of either abandoning immunity or making it absolute. The Essay breaks down its discussion of qualified immunity into three distinct, but related, categories, and argues that the challenges presented within each category are difficult, if not impossible, to overcome. First, it addresses what can best be described as qualified immunity’s foundational jurisprudential tensions. Embedded in the doctrine are several first-level legal theory problems that can be identified and …

The Horror Chamber: Unqualified Impunity In Prison, David M. Shapiro, Charles Hogle

Notre Dame Law Review

The federal courts have been open to prisoners’ constitutional claims for half a century, but to this day, the availability of federal litigation has not stopped prisoners from being tortured, maimed, killed, or otherwise made to suffer chilling abuse. The failure of litigation as a deterrent is due in part to a confluence of legal and situational factors—doctrinal deference, statutory hurdles, and the many difficulties associated with litigating a civil rights case against one’s jailers—that make prison-conditions cases virtually impossible to win. We call this combination of factors “practical immunity.” Practical immunity amounts to a formidable barrier against successful prison-conditions …

Qualified Immunity: Time To Change The Message, Karen M. Blum

Notre Dame Law Review

This Essay will proceed in four parts. Parts I, II, and III will highlight, through some recent illustrative cases, areas where the qualified immunity defense has been especially ineffective and inefficient by: (Part I) hampering the development of constitutional law and impeding the redress of constitutional wrongs; (Part II) draining resources of litigants and courts through interlocutory appeals that are frequently without merit and often jurisdictionally suspect; and (Part III) breeding confusion into the roles of the judge and the jury in our judicial system, effectively enhancing the judge’s role at the expense of the constitutional right to jury trial. …

Formalism, Ferguson, And The Future Of Qualified Immunity, Fred O. Smith Jr.

Notre Dame Law Review

This Essay explores whether formalism and accountability are compatible lodestars as we steer toward a new future for qualified immunity. Ultimately, I argue that two existing proposals would bring the doctrine closer to its text and history, mitigate against fragmentation in the law of constitutional torts, and narrow the rights-remedies gap when government officials violate the Constitution. One proposal, by John Jeffries, would create a fault-based system, where government officials and entities alike would be liable for constitutional violations that are both unreasonable and unconstitutional. Another proposal would render governmental employers’ liable for the acts of their agents.

Doctors On The Take: Aligning Tort Law To Address Drug Company Payments To Prescribers, Lars Noah

Buffalo Law Review

The pharmaceutical and medical device industries aggressively market their wares to health care professionals, and the giving of gifts has become a central feature of this process. Most observers regard financial incentives tied to the use of specific therapeutic products as ethically impermissible, and various institutions have tried combating inappropriate gifts and payments to physicians: medical and industry groups adopted voluntary codes, federal agencies published advisory guidelines, and, most recently, state and federal legislatures enacted reporting laws. Self-regulation, threats of prosecution, and transparency initiatives have tempered the practice, but manufacturers continue to find clever ways of purchasing the loyalty of …

Qualified Immunity And Fault, John F. Preis

Notre Dame Law Review

This Essay describes, critiques, and attempts to reform the role of fault in the defense of qualified immunity. It first argues, in Part I, that the defense does not properly assess fault because it immunizes persons who are at fault and holds liable persons who are not. The chief cause of this problem is that the defense is focused on an exceedingly narrow source of law: appellate judicial opinions. Appellate opinions are, not surprisingly, rarely read by government officers and, even when their substance is communicated to officers, they only comprise one of many factors that affect the blameworthiness of …

The Branch Best Qualified To Abolish Immunity, Scott Michelman

Notre Dame Law Review

Qualified immunity—the legal doctrine that shields government officials from suit for constitutional violations unless the right they violate “is sufficiently clear that every reasonable official would have understood that what he is doing violates that right”—has come under increasing judicial and scholarly criticism from diverse ideological viewpoints. This Essay considers the question of which branch of government should fix it. I take as a starting point the many critiques of qualified immunity and then turn to the question of whether courts should wait for Congress to reform this problematic doctrine. Do considerations of stare decisis or institutional competence counsel in …

Take-Home Toxin: Following Kesner’S Lead And Creating A Consistent Framework For Determining Duty Toward Victims Of Secondary Asbestos Exposure, Brendan Kelly

Maryland Law Review

No abstract provided.

Jackson V. Dackman Co.: The Legislative Modification Of Common Law Tort Remedies Under Article 19 Of The Maryland Declaration Of Rights, Dan Friedman

Maryland Law Review

No abstract provided.

Out Of Thin Air: Trade Secrets, Cybersecurity, And The Wrongful Acquisition Tort, Sharon Sandeen

Minnesota Journal of Law, Science & Technology

No abstract provided.