Law Commons^™

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 …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue …

The Misuse Of Product Misuse: Victim Blaming At Its Worst, Robert A. Adler, Andrew F. Popper

William & Mary Business Law Review

This Paper addresses the legal consequences that surface when a consumer uses a product in a manner not specifically intended by that product’s designer or manufacturer. If a product is used in a reasonably foreseeable manner, the fact that the use is at odds with a manufacturer’s intention should not be a basis to deny tort liability or limit the regulatory options of the Consumer Product Safety Commission. If a product proves to be unsafe, defective, dangerous, or otherwise hazardous to users and consumers, use patterns should not be the primary determinant in assessing regulatory and common law sanctions or …

The "Art" Of Future Life: Rethinking Personal Injury Law For The Negligent Deprivation Of A Patient's Right To Procreation In The Age Of Assisted Reproductive Technologies, Erika N. Auger

Chicago-Kent Law Review

No abstract provided.

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be …

War Torts, Autonomous Weapon Systems, And Liability: Why A Limited Strict Liability Tort Regime Should Be Implemented, Elizabeth Fuzaylova

Cardozo Law Review

Part I of this Note will discuss the evolution of Al from early computer models in the 1980s to sophisticated and standalone thinking machines in today's world, while touching on some of the drawbacks. It will also discuss the evolution of Al within the military, encompassing the current state of the debate over the use of autonomous weapons. Further, it explores the already proposed regulatory changes that surround Al and their hypothetical impacts on military Al and autonomous weapon systems. Part 11 first delves into factors to consider in regulating autonomous weapon systems. It then analyzes whether an Al machine …

A Flood-Not A Ripple-Of Harm: Proximate Cause Under The Fair Housing Act, Justin P. Steil, Daniel Traficonte

Cardozo Law Review

Over the past decade, several city governments across the country have filed suits against banks pursuant to the Fair Housing Act seeking redress for municipal damages caused by the banks' discriminatory lending practices. Following the ruling in Bank of America Corp. v. City of Miami, lower courts are now confronting the question of where to "draw the line" of proximate causation under the Fair Housing Act, and specifically whether the harms experienced by cities as a result of banks' discriminatory lending meet the requirements of proximate causation. In suggesting a direction for lower courts, the Court in City of …

Too Big For Personal Jurisdiction? A Proposal To Hold Companies Accountable For In-State Conduct In Accordance With Due Process Principles, Polina Pristupa

Cardozo Law Review

This Note discusses the potential negative effects that BMS can have on future plaintiffs' ability to sue large corporations in states where the corporations have a major presence but in which they are neither incorporated nor headquartered. Part I outlines the history of personal jurisdiction case law. Part II looks to the different approaches that the majority and dissenting opinions in BMS took in examining the question of jurisdiction. It also looks at the sliding scale test that the California Supreme Court used to allow the nonresident plaintiffs to sue within the state's courts. Section II.B then considers the effect …

The Bp Mdl And Its Aftermath: Whither Opa's Displacement Jurisprudence?, John Costonis

Journal Articles

No abstract provided.

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

Draft Of Fair Use In Oracle: Proximate Cause At The Copyright/Patent Divide - 2019, Wendy J. Gordon

Scholarship Chronologically

This Paper was presented at the conference, "A Celebration of the Work of Wendy Gordon," at Boston University school of law on June 14, 2019. In presented an earlier draft under the title, Transformative Use, Proximate Cause, and Copyright, at the University of Texas at Austin on March 23, 2017. Under the title, Inegrating Judge Legal's Theory of Fair Use into on Economic View of Copyright Law: From "proximate Cause" to "Transormative Use," the paper was also presented at the March, 2016, "Conference on IP and Private Law," held at Harvard Law School. I am grateful to …

Rescuing Maryland Tort Law: A Tribute To Judge Sally Adkins, Donald G. Gifford

Faculty Scholarship

No abstract provided.

A Critical Study Of The Methodology Of Comparative U.S. Tort Law Research, Hassan Badini, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

In recent decades, legal comparative studies in Iran have increased drastically. The US tort law has fascinated many Iranian scholars and jurists. Yet, many of the comparative studies lack the necessary elements of a high-quality legal research. Different factors attribute to this problem. Among these factors are lack of in depth knowledge of the US legal system, incorrect translation of legal texts, incorrect citations and lack of access to resources. Furthermore, understanding the ways we can incorporate the US based tort law theories in Iran should be accompanied with the understanding of Iran’s socio-economic status. In addition, the tort law …

A “Paucity Of Details”: S.J. Crane And The Baseball Rule, Robert Jarvis

Faculty Scholarship

No abstract provided.

Flying Baseballs, Injured Fans, Uncertain Liability: Why Legislative Action Is Needed In The Sunshine State, Robert Jarvis

Faculty Scholarship

No abstract provided.

Research Tip: Solving A Baseball Law Mystery: Unusual Databases For Lawyers, Robert Jarvis

Faculty Scholarship

No abstract provided.

Let’S Be Reasonable: The Consumer Expectations Test Is Simply Not Viable To Determine Design Defect For Complex Autonomous Vehicle Technology, Emily Frascaroli, John Isaac Southerland, Elizabeth Davis, Woods Parker

Journal of Law and Mobility

Although highly automated vehicles (“HAVs”) have potential to reduce deaths and injuries from traffic crashes, product liability litigation for design defects in vehicles incorporating autonomous technology is inevitable. During the early stages of implementation, courts and juries will be forced to grapple with the application of traditional product liability principles to a never before experienced category of highly technical products. Recent decisions limiting the use of the consumer expectations test in cases involving complex products prompted the authors to examine more closely the history behind and the future viability of the consumer expectations test in HAV litigation.

The Costs Of Having (Too) Many Choices: Reshaping The Doctrine Of Informed Consent, Maytal Gilboa, Omer Y. Pelled

Brooklyn Law Review

This article suggests a reshaping of the doctrine of informed consent to accommodate the potential costs of choices vis-à-vis patients’ well-being. Applying insights from psychology and behavioral economics, it makes four main claims. First, the current doctrine imposes a broad duty of disclosure on physicians toward their patients, based on the premise that patients want and need to know all the alternative treatments for their ailment. We argue that this premise is misguided. The process of choice making is not cost free. Since patients incur costs when they must choose a treatment from too many alternatives, the current duty should …

The Cost Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

The neuroscience revolution poses profound challenges to the doctrine of avoidable consequences in tort law and exposes deep theoretical riddles about the right to our own mental experiences and memories. To address this profound question, this Article begins with a deceptively simple principle of tort law: A victim of tortious wrongdoing by another is held responsible for mitigating her own physical injuries. This Article addresses whether that same doctrine should require a tort victim to likewise mitigate her emotional injuries. The answer to that question is of great and increasing importance because it goes to the heart of how society …

Ventura V. Kyle And American Sniper; The Anatomy Of A Public Figure’S Lawsuit, Michael K. Steenson

Faculty Scholarship

Chris Kyle's book, American Sniper, detailed his exploits as a prolific Navy SEAL sniper. In a book subchapter Kyle detailed an encounter with a "Mr. Scruff Face" in a San Diego Bar. The book states that Ventura made certain statements that were demeaning of the United States and the Navy SEALS. Scruff Face was subsequently identified by Chris Kyle as Jesse Ventura, former governor of Minnesota. Ventura sued Chris Kyle for defamation, appropriation, and unjust enrichment. Relying on trial court documents, briefs, and the opinions in the case, this article probes those theories of recovery with an emphasis on the …

Broken Bodies And Broken Dreams: How Social Safety Net Programs Subsidize Professional Boxing And The Need To Improve Legal And Health Protections For Prizefighters, Robert I. Correales

Scholarly Works

This article explores the lack of basic health and insurance protections for professional boxing participants and proposes changes in policy that will reflect the dangerous nature of professional boxing and the modem cost of medical services. Recognizing that a legislative remedy may never arrive, this article also examines previously unexplored or underutilized legal doctrines such as tort and workers' compensation law that may provide an alternative to inadequate insurance protection, and suggests a more aggressive approach along those lines to compel fuller protection for prizefighters.

Technological Solutions To Human Error And How They Can Kill You: Understanding The Boeing 737 Max Products Liability Litigation, W. Bradley Wendel

Journal of Air Law and Commerce

No abstract provided.

Modern-Day Pirates: Why Domestic Parent Corporations Should Be Liable Under The Alien Tort Statute For Violations Of Workers' Rights Within Global Supply Chains, Erin Downey

American University Law Review

No abstract provided.

Products Liability In The Digital Age: Liability Of Commercial Sellers Of Cad Files For Injuries Committed With A 3d-Printed Gun, Mika Sharpe

American University Law Review

No abstract provided.

Reputation Failure: The Limits Of Market Discipline In Consumer Markets, Yonathan A. Arbel

Articles

Many believe that consumer-sourced reputational information about products should increasingly replace top-down regulation. Instead of protecting consumers through coercive laws, reputational information gleaned from the wisdom of the crowd would guide consumer decision-making. There is now a growing pressure to deregulate in diverse fields such as contracts, products liability, consumer protection, and occupational licensing.

This Article presents a common failure mode of systems of reputation: "Reputation Failure." By spotlighting the public-good nature of reviews, rankings, and even gossip, this Article shows the mismatch between the private incentives consumers have to create reputational information and its social value. As a result …

Why Police Should Protect Complainant Autonomy, Randall K. Johnson

Faculty Works

This Essay does its work in, at least, three ways. First, it encourages better use of scarce public sector resources by calling for reform of the police complaint intake process. Next, this Essay identifies the causes of police complaint inefficiencies by critically-assessing how intake is done by the Chicago Police Department (CPD). Lastly, it provides guidance about how to achieve CPD intake reform by better protecting complainant autonomy. Complainant autonomy, at least in this Essay, is defined as a real party in interest’s (i.e. an injured citizen’s) right to control how its allegations are framed by a nominal plaintiff (i.e. …