Law Commons^™

From Automation To Autonomy: Legal And Ethical Responsibility Gaps In Artificial Intelligence Innovation, David Nersessian, Ruben Mancha

Michigan Technology Law Review

The increasing prominence of artificial intelligence (AI) systems in daily life and the evolving capacity of these systems to process data and act without human input raise important legal and ethical concerns. This article identifies three primary AI actors in the value chain (innovators, providers, and users) and three primary types of AI (automation, augmentation, and autonomy). It then considers responsibility in AI innovation from two perspectives: (i) strict liability claims arising out of the development, commercialization, and use of products with built-in AI capabilities (designated herein as “AI artifacts”); and (ii) an original research study on the ethical practices …

Unbuckling The Seat Belt Defense In Arkansas, Spencer G. Dougherty

Arkansas Law Review

The “seat belt defense” has been hotly litigated over the decades in numerous jurisdictions across the United States. It is an affirmative defense that, when allowed, reduces a plaintiff’s recovery for personal injuries resulting from an automobile collision where the defendant can establish that those injuries would have been less severe or avoided entirely had the plaintiff been wearing an available seat belt. This is an unsettled legal issue in Arkansas, despite the growing number of cases in which the seat belt defense is raised as an issue. Most jurisdictions, including Arkansas, initially rejected the defense, but the basis for …

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French

Journal Articles

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been …

Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French

Christopher C. French

Informers Defamation And Public Policy, Daniel More

Georgia Journal of International & Comparative Law

No abstract provided.

Asbestos Litigation And Bankruptcy: A Case Study For Ad Hoc Public Policy Limitations On Joint And Several Liability, Richard L. Cupp Jr

Pepperdine Law Review

Over a decade ago, the Federal Judicial Conference warned of an asbestos litigation “disaster of major proportions.” The Supreme Court of the United States has described the litigation as a “crisis.” According the RAND Institute for Civil Justice, by the end of 2000, more than 600,000 asbestos claims were filed. RAND estimates that as many as three million more plaintiffs may eventually file claims. Most new claimants are not sick. The flood of claims has forced almost sixty companies into bankruptcy; many of these bankruptcies are very recent. As a result, defendants with only remote connections to asbestos – known …

What Does Tort Law Do? What Can It Do?, Scott Hershovitz

Articles

It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Journal Articles

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate …

Parents Should Not Be Legally Liable For Refusing To Vaccinate Their Children, Jay Gordon

Michigan Law Review First Impressions

Should a parent who takes advantage of a personal belief exemption to avoid vaccinating a child be held liable if that child infects other people? No, because there are valid medical reasons for choosing this exemption and tracing direct transmission of these illnesses from an unvaccinated child to another person is virtually impossible.

The Problem Of Vaccination Noncompliance: Public Health Goals And The Limitations Of Tort Law, Daniel B. Rubin, Sophie Kasimow

Michigan Law Review First Impressions

Imposing tort liability on parents who fail to vaccinate their children would not serve the public health and public policy interests that drive childhood immunization efforts. The public policy goals of vaccination are to slow the spread of disease and to reduce mortality and morbidity. Our country’s public health laws already play a substantial role in furthering these goals. Although application of tort law may be an appropriate response to some of the problems that result from vaccination noncompliance, there also is a need to cultivate public understanding of the connection between individual actions and collective wellbeing. It is doubtful …

Letting Good Deeds Go Unpunished: Volunteer Immunity Laws And Tort Deterrence, Jill R. Horwitz, Joseph Mead

Articles

Does tort law deter risky behavior in individuals? We explore this question by examining the relationship between tort immunity and volunteering. During the 1980s and 1990s, nearly every state provided some degree of volunteer immunity. Congress followed with the 1997 Volunteer Protection Act. This article analyzes these acts, identifying three motivations for them: the chilling effects of tort liability, limits on liability insurance, and moral concerns. Using data from the Independent Survey’s Giving and Volunteering surveys, we then identify a large and positive correlation between immunity and volunteering. We next consider the implications of the findings for tort theory and …

Gambling With The Health Of Others, Stephen P. Teret, Jon S. Vernick

Michigan Law Review First Impressions

The health and wellbeing of the public is, in part, a function of the behavior of individuals. When one individual’s behavior places another at a foreseeable and easily preventable risk of illness or injury, tort liability can play a valuable role in discouraging that conduct. This is true in the context of childhood immunization.

Unintended Consequences: The Primacy Of Public Trust In Vaccination, Jason L. Schwartz

Michigan Law Review First Impressions

The increasing availability of personal belief exemptions from state vaccination requirements is a growing concern among proponents of vaccination. Holding parents of non-vaccinated children liable to those they infect is among the responses proposed to maintain high vaccination rates. Even if motivated by a sincere desire to maximize the benefits of vaccination throughout society, such a step would be inadvisable, further entrenching opponents of vaccination and adding to the atmosphere of confusion and unnecessary alarm that has become increasingly common among parents of children for whom vaccination is recommended.

Challenging Personal Belief Immunization Exemptions: Considering Legal Responses, Alexandra Stewart

Michigan Law Review First Impressions

Public health agencies and citizens should employ legal approaches to hold parents accountable for refusing to vaccinate their children. The judiciary would craft an effective response to defeat the threat posed by these parents. Public-nuisance law may offer a legal mechanism to hold vaccine objectors liable for their actions.

Choices Should Have Consequences: Failure To Vaccinate, Harm To Others, And Civil Liability, Douglas S. Diekema

Michigan Law Review First Impressions

A parent’s decision not to vaccinate a child may place others at risk if the child becomes infected and exposes others to the disease. Should an individual harmed by an infection transmitted from a child whose parents chose to forgo vaccination have a negligence claim against those parents? While I do not hold a legal degree and therefore cannot speak directly to issues of law, as a physician and ethicist it seems to me that the basic elements that comprise negligence claims—harm, duty, breach of duty, and causation—are met in some cases where parents forgo vaccination.

Your Mileage May Vary: A General Theory Of Legal Disclaimers, R. George Wright

The University of New Hampshire Law Review

[Excerpt] “Disclaimers are a common feature of public and commercial life. While this article will be concerned with disclaimers only in legal contexts, the range of such legal contexts is broad. This article will refer below to disclaimers by governmental and non-governmental actors in various circumstances. Disclaimers arise, for example, in Establishment Clause cases in general, and of late, in cases involving public school evolution text books. Disclaimers may also be thought of as a remedy for compelled speech, or as themselves an instance of compelled speech. In addition, commercial speech is a fertile source of disclaimer problems, as in …

Slides: What's In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

Presenter: James R. Rasband, J. Reuben Clark Law School, Brigham Young University

23 slides

What’S In A Name? The Story Of The Utah Wilderness Reinventory, James R. Rasband

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

14 pages.

Includes bibliographical references

"James R. Rasband, Associate Dean of Research & Academic Affairs and Professor of Law, J. Reuben Clark Law School, Brigham Young University"

Wrongful Discharge: The Use Of Federal Law As A Source Of Public Policy, Nancy M. Modesitt

All Faculty Scholarship

Wrongful discharge in violation of public policy circumscribes the employment at-will doctrine by prohibiting employers from firing employees who engage in conduct that is deemed to be protected by state or federal public policy. While much has been written about the pros and cons of such wrongful discharge claims, to date no scholarship has focused on the problems that arise when the source of public policy is a federal rather than state statute. This article analyzes the historical and current approaches to the use of federal statutes as a source of public policy to protect employees against discharge, concluding that …

Bitter Medicine: A Critical Look At The Mental Health Care Provider’S Duty To Warn In Texas, Charles E. Cantú, Margaret H. Jones Hopson

Faculty Articles

A quarter of a century has passed since Tarasoff v. Regents of the University of California first imposed a duty of care upon mental health care professions for third parties. In Tarasoff, the California Supreme Court held that once a therapist determines, or reasonably should have determined, a patient poses a significant danger of violence to others, the therapist bears a duty to exercise reasonable care to protect the foreseeable victim from that danger.

Tarasoff has since been widely accepted by both legislatures and courts as the basis for imposing the duty of reasonable care upon mental health care professionals …

Judge-Made Insurance That Was Not On The Menu: Schmidt V. Smith And The Confluence Of Text, Expectation, And Public Policy In The Realm Of Employment Practices Liability, Jeffrey W. Stempel

Scholarly Works

In Schmidt v. Smith, the New Jersey Supreme Court caught more than a few observers by surprise. New Jersey courts have generally issued opinions regarded as pro-claimant and pro-policyholders. But everyone's taste for recompense and coverage has limits. In Schmidt, the court exceeded those limits for many observers by holding that despite what it regarded as clear contract language in an exclusion, an insurer providing Employers’ Liability (“EL”) coverage along with Workers' Compensation (“WC”) insurance for the employer was required to provide coverage in a case of blatant sexual harassment bordering on criminal assault. In doing so, the Schmidt court, …

Recent Case Developments, Jeffrey W. Stempel

Scholarly Works

Recent case developments in Insurance Law in years 1998 and 1999.

Liability Of Suppliers Of Natural Raw Materials And The Restatement (Third) Of Torts: Products Liability- A First Step Toward Sound Public Policy, M. Stuart Madden

University of Michigan Journal of Law Reform

From its inception, the law governing liability for damage or injuries caused by defective products has pertained to potential liability for products that have been processed, finished, or fabricated. Naturally occurring raw materials, for the most part, have been considered beyond doctrinal concern, largely because characterizing a merchantable raw material, such as copper or pigiron, as defective is conceptually difficult. Nevertheless, certain doctrines that developed for the application of products liability to other products have gained sporadic application to naturally occurring raw materials, including the sophisticated purchaser defense, the bulk supplier defense, and the ingredient supplier defense. Madden argues that …

The New "Pick-Your-Own" Statutes: Delineating Limited Immunity From Tort Liability, Terence J. Centner

University of Michigan Journal of Law Reform

Over the past several years, state legislatures have been asked to provide immunity from liability for members of certain interest groups including providers of horses, risky sport activities, and "pick-your-own" produce. This Article reports on statutory provisions providing tort immunity for producers who allow the public to come onto their property to harvest crops. Provisions allowing profit-making businesses to qualify for tort immunity are not new, but the expansion to cover pick-your-own operators signifies a significant policy change regarding personal liability. The pick-your-own provisions may indicate a policy shift imposing greater responsibility for persons engaging in activities to use care …

Employment Law: Report A Crime, Lose Your Job: The Oklahoma Supreme Court Reins In The Public Policy Exception In Hayes V. Eateries, Inc., M. Derek Zolner

Oklahoma Law Review

No abstract provided.

Judicial Reliance On Public Policy: An Empirical Analysis Of Products Liability Decisions, James A. Henderson Jr.

Cornell Law Faculty Publications

No abstract provided.

Educational Malpractice: A Tort Is Born, Johnny C. Parker

Cleveland State Law Review

This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …

Educational Malpractice: A Tort Is Born, Johnny C. Parker

Cleveland State Law Review

This article examines the judicial justification for the nonrecognition of educational malpractice as a theory of tort liability. Section I focuses on the various factual contexts in which educational malpractice claims have arisen and analyzes the concept of duty and proximate cause in the different factual contexts. Section II discusses the common law principles which demonstrate that the analytical problems associated with educational malpractice are not new to the law. Section III examines public policy as a distinct component of the duty-proximate cause inquiry. Section IV also focuses on public policy as expressed by various state legislatures regarding the teaching …