Law Commons^™

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

The Texas Two-Step: How Corporate Debtors Manipulate Chapter 11 Reorganizations To Dance Around Mass Tort Liability, Laura S. Rossi

Emory Bankruptcy Developments Journal

The purpose of the bankruptcy system is to grant a “fresh start” to the honest but unfortunate debtor, while the purpose of the tort system is to make injured parties “whole” again. As a result, these systems inevitably clash when a business debtor files for bankruptcy while there are pending tort claims against it. The tension between these systems has reached a whole new level following the emergence of a new strategy deemed the “Texas Two-Step.”

A Texas statute leaves open a loophole for otherwise solvent companies to dodge mass tort liabilities and protect their assets, leaving injured plaintiffs with …

Road To Recovery: Why Rhode Island Drivers Should Be Made Whole From Potholes, Jordan Z. Sasa

Roger Williams University Law Review

No abstract provided.

Cheap Speech And The Gordian Knot Of Defamation Reform, Lyrissa Barnett Lidsky

UF Law Faculty Publications

This article addresses the complex past and uncertain future of defamation law in order to evaluate complaints lodged against it by critics, including—most notably—U.S. Supreme Court Justices Clarence Thomas and Neil Gorsuch. The article describes how statutory and constitutional reforms have altered the legal landscape of defamation law over the past half-century and explains why the common law has played a less prominent role. The article then assesses the criticisms of Justices Thomas and Gorsuch, finding them to rest on flawed understandings of how today’s defamation law operates. After identifying barriers to reform, the article offers a prescription to modernize …

Authorbots, Derek E. Bambauer, Mihai Surdeanu

UF Law Faculty Publications

ChatGPT has exploded into the popular consciousness in recent months, and the hype and concerns about the program have only grown louder with the release of GPT-4, a more powerful version of the software. Its deployment, including with applications such as Microsoft Office, has raised questions about whether the developers or distributors of code that includes ChatGPT, or similar generative pre-trained transformers, could face liability for tort claims such as defamation or false light. One important potential barrier to these claims is the immunity con-ferred by 47 U.S.C. § 230, popularly known as “Section 230.” In this Essay, we make …

Negligent Ai Speech: Some Thoughts About Duty, Jane R. Bambauer

UF Law Faculty Publications

Careless speech has always existed on a very large scale. When people talk, they often give bad advice or wrong information, and occasionally this leads the listener to act in a way that causes physical harm. The scale was made more visible by the public Internet as the musings and conversations of billions of participants became accessible and searchable to all. This dynamic produced a set of tort and free speech principles that we have debated and adjusted to over the last three decades.

AI speech systems bring a new dynamic. Unlike the disaggregated production of misinformation in the Internet …

David, Michael D. Green

Roger Williams University Law Review

No abstract provided.

Baker V. Women & Infants Hospital Of Rhode Island, 268 A.3d 1165 (R.I. 2022), Melissa Richi

Roger Williams University Law Review

No abstract provided.

Reckless Associations, Jane R. Bambauer, Saura Masconale, Simone M. Sepe

UF Law Faculty Publications

This Article provides a theoretical foundation and practical guide for a new form of liability that has proven necessary in the Internet era: the tort of Reckless Association. This tort would hold de facto leaders of informal networks responsible when radicalized members of the network cause physical harm to others. Recent prosecutions of the leaders of the Oath Keepers and other white supremacists who organized the Charlottesville protest, and rumblings of a similar prosecution against Donald Trump, demonstrate that there is a public appetite for this form of legal responsibility. To date, these prosecutions proceed on theories of incitement or …

Universal Forms Of Influence: Support For Women On Boards, Cindy A. Schipani, Paula J. Caproni

Seattle University Law Review

There are various efforts underway to increase gender diversity on corporate boards, including legislation in California, a recent SEC approved comply or explain rule for companies listed on the Nasdaq stock exchange, and efforts by institutional investors such as State Street and BlackRock to recognize the value diversity brings to corporate decisionmaking. Although some of these efforts are being contested in the courts, many companies have begun to comply with these initiatives.

This Article is organized as follows. Part I provides an overview of several efforts to increase gender diversity on boards along with numerous research studies showcasing the benefits …

“Statistics Are Human Beings With The Tears Wiped Away”: Utilizing Data To Develop Strategies To Reduce The Number Of Native Americans Who Go Missing, Lori Mcpherson, Sarah Blazucki

Seattle University Law Review

On New Year’s Eve night, 2019, sixteen-year-old Selena Shelley Faye Not Afraid attended a party in Billings, Montana, about fifty miles west of her home in Hardin, Montana, near the Crow Reservation. A junior at the local high school, she was active in her community. The party carried over until the next day, and she caught a ride back toward home with friends in a van the following afternoon. When the van stopped at an interstate rest stop, Selena got out but never made it back to the van. The friends reported her missing to the police and indicated they …

Vicarious Liability For Ai, Mihailis E. Diamantis

Indiana Law Journal

When an algorithm harms someone—say by discriminating against her, exposing her personal data, or buying her stock using inside information—who should pay? If that harm is criminal, who deserves punishment? In ordinary cases, when A harms B, the first step in the liability analysis turns on what sort of thing A is. If A is a natural phenomenon, like a typhoon or mudslide, B pays, and no one is punished. If A is a person, then A might be liable for damages and sanction. The trouble with algorithms is that neither paradigm fits. Algorithms are trainable artifacts with “off” switches, …

Damages For Tortious Harm To Pets: Minnesota's Market Value Approach Severely Undercompensates Plaintiffs, Morgan Phelps

Mitchell Hamline Law Review

No abstract provided.

A Theory Of (In)Justice: The Failure Of Tort Law To Secure Equal Respect For Women And A Feminist Contractarian Framework For Reform, Eva Augst

CMC Senior Theses

Traditional approaches to philosophical theories of tort law have systematically undermined the individual worth and security interests of women. However, torts also provide a particularly powerful avenue for reform, in that they embody the public power of private law and offer individuals the opportunity to seek recourse and accountability for wrongs. In this paper, I offer a framework for such reformist approaches to tort philosophy, predominantly inspired by Jean Hampton’s “Feminist Contractarianism,” which requires that women be recognized as individuals with intrinsic worth who are deserving of respect. To accomplish this, I first note the particular relevance of social contract …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Articles

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested far safety. Many have been shown to cause serious health harms, ranging.from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures-the Toxic Substances Control Act ("TSCA")-was long considered a dead letter after the Environmental Protection …

The Waiting Game: Who Benefits From Recovered Assets Associated With Venezuelan State Corruption? Remission As A Solution, Alejandro Rodriguez Vanzetti

FIU Law Review

The Bolivarian Republic of Venezuela (“Venezuela”) has, and continues to undergo, significant political and economic challenges stemming from government corruption. In response, the United States government has seized assets of current or former Venezuelan state officials associated with criminal wrongdoing, imposed sanctions on Nicolas Maduro’s government, and proposed legislation to combat corruption. The Department of Justice (“DOJ”) has led dozens of prosecutions against those responsible for these crimes through its use of asset forfeiture, a critical tool in the recovery of illicit proceeds. An estimated $300 billion of these assets are held in South Florida alone, with $1.5 billion identified …

Laid To Rust: Proposing Strict Liability In Tort For Prop Firearm Injuries Following The Alec Baldwin Shooting, Mark Edward Blankenship Jr., Joseph A. Ott

Nevada Law Journal Forum

Prop gun safety standards are often a mixed bag. “Despite some industry reforms following previous tragedies, the federal workplace safety agency in the U.S. is silent on the issue of on-set gun safety.” Some states follow film labor union and movie studio guidelines. Other states have regulations on pyrotechnic devices, but not on prop guns. Thus, states should consider what successful legal course of action a wrongfully deceased heir can bring in the event that no criminal charges can be filed. This article proposes that the best regulatory approach and tort liability course of action is through (1) treating prop …

Civil Liability For Sexual Misconduct, Mike K. Steenson

Mitchell Hamline Law Review

No abstract provided.

The Most Substantial Factor: Analysis Of Ambiguous Causation--Staub As Trustee Of Weeks V. Myrtle Lake Resort, Llc, 964 N.W.2d 614 (Minn. 2021), Hailey Oestreicher

Mitchell Hamline Law Review

No abstract provided.

Defaming The President, Douglas B. Mckechnie

Mitchell Hamline Law Review

No abstract provided.

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 …

Climate Change And Modern State Common Law Nuisance And Trespass Tort Claims, Jack Wold-Mcgimsey

University of Colorado Law Review

This Comment examines the use of state common law tort claims to address climate change. The aim of this work is not to provide an in-depth examination of these issues, but rather to provide a contextualized and comprehensive overview of some of the most important issues in this field using modern cases actively being litigated. This Comment comes to the conclusion that the future of common law nuisance and trespass claims in the context of climate change is, for now, unclear. Given the national and global implications of climate change, courts may find that isolated states cannot set binding precedents …

Deliberate Indifference: Respondeat Superior Liability For Municipalities In Civil Rights Cases As An Alternative To Qualified Immunity Reform, Mark C. Niles

Faculty Publications

The police killing of George Floyd in Minneapolis, Minnesota, has resulted in a renewed focus on adjudication of civil rights claims against government officials and the perceived inadequacy of the legal resolution of these claims. Calls for reform or complete removal of the defense of qualified immunity for government officials have been central to these discussions.

This Article argues that while arguments for qualified immunity reform are convincing and vital, the exclusive focus on this aspect of civil rights adjudication is misplaced and serves as a distraction from a more basic and consequential flaw in the constitutional tort jurisprudence: the …

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

Ad Coelum And The Design Of Property Rights, Joseph Schremmer

Faculty Articles

This Article seizes on a specific doctrinal discussion in Eric Claeys's Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys's discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts …

Subsurface Trespass: Private Remedies And Public Regulation, Joseph Schremmer

Faculty Articles

There is a growing literature examining when subsurface invasions from activities like tunneling, horizontal drilling, hydraulic fracturing, and waste disposal will constitute actionable subsurface trespasses. Liability for subsurface trespass has become an important question for many reasons, including that a significant climate-change technology, carbon dioxide sequestration, hinges on the ability to inject massive quantities of carbon dioxide underneath the land of many owners. To date, the subsurface trespass scholarship has paid relatively little attention to two topics downstream of liability:private remedies for trespassing subsurface activities. This Article provides a high level account of the role of, and relationship between, private …

The Concurrent Use Of Land For Carbon Sequestration And Mineral Development, Joseph Schremmer

Faculty Articles

As carbon capture and sequestration projects gain momentum across the United States, questions about the coordination of sequestration with mineral extraction—especially oil and gas development—are growing in urgency. Using many of the same technologies, these two marvels of modern ingenuity aim to exploit the same subsurface resources for different purposes: one to bring out the hydrocarbons and the other to put away the byproducts of their combustion. From needing to drill through each other’s operations to reach deeper strata, to competing for the use of reservoir storage space (“pore space”), mineral development and carbon sequestration projects are sure to clash, …