Law Commons^™

Beyond Discrimination: Market Humiliation And Private Law, Hila Keren

University of Colorado Law Review

Market humiliation is a corrosive relational process to which the law repeatedly fails to respond due to the law’s heavy reliance on the discrimination paradigm. In this process, providers of market resources, from housing and work to goods and services, use their powers to reject or mistreat other market users due to their identities. They thus cause users severe harm and deprive them of dignified participation in the marketplace. The problem has recently reached a peak. The discussion in 303 Creative v. Elenis indicates that the Supreme Court might legitimize market humiliation by granting private providers broad free speech exemptions …

Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro

Indiana Law Journal

We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …

Minding Accidents, Teneille R. Brown

University of Colorado Law Review

Tort doctrine states that breach is all about conduct. Unlike in the criminal law context, where jurors must engage in amateur mindreading to evaluate mens rea, jurors are told that they can assess civil negligence by looking only at the defendant’s external behavior. But this is false. Here I explain why, by incorporating the psychology of foresight. Foreseeability is at the heart of negligence—appearing as the primary test for duty, breach, and proximate cause. And yet, it has been called a “vexing morass” and a “malleable standard” because it is so poorly understood. This Article refines and advances the construct …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Indiana Law Journal

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, …

Banksy: Artist, Prankster, Or Both?, Anna Tichy

NYLS Law Review

No abstract provided.

Where We’Re Going, We Don’T Need Drivers: Autonomous Vehicles And Ai-Chaperone Liability, Peter Y. Kim

Catholic University Law Review

The future of mainstream autonomous vehicles is approaching in the rearview mirror. Yet, the current legal regime for tort liability leaves an open question on how tortious Artificial Intelligence (AI) devices and systems that are capable of machine learning will be held accountable. To understand the potential answer, one may simply go back in time and see how this question would be answered under traditional torts. This Comment tests whether the incident involving an autonomous vehicle hitting a pedestrian is covered under the traditional torts, argues that they are incapable of solving this novel problem, and ultimately proposes a new …

Maximizing The Value Of America’S Newest Resource, Low- Altitude Airspace: An Economic Analysis Of Aerial Trespass And Drones, Tyler Watson

Indiana Law Journal

Recognizing that tort law is a unique area of law that was judicially created by rational human beings with an innate sense of economic justice, this Note seeks to apply positive economic theory—derived from ex post analyses of tort cases—to an ex ante analysis to predict how and to what extent the existing and proposed aerial trespass rules will further economic efficiency in the context of drones and airspace rights. Part I will provide (1) an overview of the Federal Aviation Administration’s (FAA) current regulatory framework and the development of the common law aerial trespass doctrine and (2) an overview …

Patent Accidents: Questioning Strict Liability In Patent Law, Patrick R. Goold

Indiana Law Journal

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently.

This Article questions the normative desirability of strict liability in patent law. Assuming the primary value of patent law is utilitarian, this Article poses the research question: what liability rule will maximize social welfare? This …

Third-Party Liability Of Directors And Officers: Reconciling Corporate Personality And Personal Responsibility In Tort, Michael Marin

Dalhousie Law Journal

When is a director or of�� cer personally liable in tort to a party who is not the corporation he or she serves? In Canada, there is no clear answer. The law is marked by division both within and between appellate courts, resulting in judgments that are hard to reconcile and verge on arbitrary. This is likely attributable to the mistaken belief that there is a tension between personal liability and corporate personality, as well as the disputed relationship between common law and statutory obligations. To address these challenges, most Canadian courts have followed a threshold corporate law analysis, which …

The Plasticity Of The Body, The Injury, And The Claim: Personal Injury Claims In The Era Of Plastic Surgeries, Adi Youcht

William & Mary Journal of Race, Gender, and Social Justice

The accelerated rise in the number of plastic surgeries has created an inflation of personal injury claims in connection with this cultural practice. This Article, on the one hand, aims to understand how the culture of plastic surgeries affects the tortious area of personal injury law (terms, concepts, goals, procedures, remedies, etc.), and on the other to understand how the significance of plastic surgery popular culture is designated by law. The Article suggests a new paradigm for defining personal injuries in order to face the legal challenges raised by plastic surgery culture and, in light of the culture’s re-designation by …

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 …

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 …

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 …

Everything You Wanted To Know About Breast Augmentation Surgery But Were Afraid To Ask: A Medical - Legal Overview, Samuel D. Hodge, Marshall G. Miles, James B. Pancio

Florida A & M University Law Review

This article will provide a medical/legal perspective to breast augmentation surgery. Written by an attorney who teaches anatomy and a plastic surgeon who routinely performs the procedure, it will initially offer a medical analysis of how the procedure is performed along with its attendant risks. The second part will focus on the court cases and legal theories that have arisen when things go wrong. The article will explain the convoluted litigation history involving breast augmentation when suits were common place and a group of experts linked breast implants to the development of autoimmune disease without any real scientific basis to …

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Instrumental And Noninstrumental Theories Of Tort Law, Richard A. Posner

Indiana Law Journal

American Association of Law Schools Torts & Compensation Systems Panel

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.

Mexican Law And Personal Injury Cases: An Increasingly Prominent Area For U.S. Legal Practitioners And Judges, Jorge A. Vargas

San Diego International Law Journal

Since tort law cases are seldom filed in Mexico, and the number of judicial resolutions rendered by Mexican courts are few and relatively unimportant, is there a sufficient corpus of Mexican jurisprudence that may be tapped into by American judges to ascertain the rules of Mexican law that govern a case pending before an American trial judge or an appellate justice? Considering that American courts resolve a far larger number of personal injury cases governed by Mexican as compared to the nominal amount of cases decided in Mexico by Mexican courts, is there a risk that this rapidly growing number …

The Kindynamic Theory Of Tort, Christopher P. Guzelian

Indiana Law Journal

Commentators complain of two major deficiencies in modern tort law: (1) that liability concepts such as "negligence" or "duty " are so vacuously defined as to permit inadvertent subjectivity and error to hinder proper case adjudication, and (2) that tort is too slow in recognizing newly discovered risks and properly compensating nascent classes of injury. We accordingly report on the Kindynamic Theory, an emerging philosophy that overcomes these twin deficiencies and sharpens understanding of poorly articulated tort intuitions

Kindynamics contends that causation is the cornerstone of tort, and that all risks are, at core, causal propositions. Contrary to its many …

Scienter, Causation, And Harm In Freedom Of Expression Analysis: The Right Hand Side Of The Constitutional Calculus, Wilson Huhn

William & Mary Bill of Rights Journal

No abstract provided.

Tort Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

Proposal For Linking Culpability And Causation To Ensure Corporate Accountability For Toxic Risks, Thomas O. Mcgarity

William & Mary Environmental Law and Policy Review

No abstract provided.

Tortious Toxics, Lisa Heinzerling, Cameron Powers Hoffman

William & Mary Environmental Law and Policy Review

No abstract provided.

Constitutional Law - Constitutional Remedy - The Third Circuit's Approach To 42 U.S.C. 1983 Malicious Prosecution Claims, Mary E. Williams

Villanova Law Review

No abstract provided.

Products Liability - The Effect Of Medtronic, Inc. V. Lohr On Third Circuit Products Liability Litigation: Medical Device Amendments Do Not Pre-Empt State Law Tort Claims, Elizabeth G. Harkins

Villanova Law Review

No abstract provided.

Tort Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

Tort Law, Honorable Leon D. Lazer

Touro Law Review

No abstract provided.

Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd

Seattle University Law Review

Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those …