Law Commons^™

Surprises In The Skies: Resolving The Circuit Split On How Courts Should Determine Whether An "Accident" Is "Unexpected Or Unusual" Under The Montreal Convention, Ashley Tang

Washington Law Review

Article 17 of both the Montreal Convention and its predecessor, the Warsaw Convention, imposes liability onto air carriers for certain injuries and damages from “accidents” incurred by passengers during international air carriage. However, neither Convention defines the term “accident.” While the United States Supreme Court opined that, for the purposes of Article 17, an air carrier’s liability “arises only if a passenger’s injury is caused by an unexpected or unusual event or happening that is external to the passenger,” it did not explain what standards lower courts should employ to discern whether an event is “unexpected or unusual.” In 2004, …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Platform Accountability: Gonzalez And Reform, Eric Schnapper

Presentations

Section 230(c)(1) was adopted for the purpose of distinguishing between conduct of third parties and conduct of internet companies themselves. Its familiar language provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The last four words are central to the limitation on the defense created by the statute; it is only regarding information created by “another” that the defense may be available. Section 230(e)(3) makes clear that even a partial role played by an internet company in the creation of harmful …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Seeking (Some) Climate Justice In State Tort Law, Karen C. Sokol

Washington Law Review

Over the last decade, an increasing number of path-breaking cases have been filed throughout the world, seeking to hold fossil fuel industry companies and governments accountable for their actions and inactions that have contributed to the climate crisis. This Article focuses on an important subset of those cases—namely, the recent surge of cases brought by states, cities, and counties all over the United States alleging that the largest fossil fuel industry actors, including ExxonMobil, Shell, BP, and Chevron, are liable in state tort law for harms caused by climate change.

The Article begins with a synthesis of the history of …

Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.

Washington International Law Journal

Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes …

Clarifying Washington's Approach To The Independent Duty Doctrine, Margaret Wykowski

Washington Law Review

When faced with limited or no recovery under contract law, resourceful lawyers often turn to tort law. The economic loss rule restricts this practice by barring recovery in tort for solely economic losses. However, what qualifies as “economic loss” is not always clear. In 2010, the Washington State Supreme Court announced it was clarifying the economic loss rule by adopting the independent duty doctrine. Rather than analyze the type of loss suffered, the independent duty doctrine determines whether a party owed a tort duty independent of the relevant contract, closely mirroring a traditional tort inquiry. When establishing the independent duty …

Science Or Status Quo? Disregard For A Defendant's Mental Illness In Tort Suits, Gabrielle Lindquist

Washington Law Review Online

Mental illness is almost never considered when courts determine whether a defendant is liable for a tort. Nearly every United States jurisdiction—Washington state included—declines to offer a modified “reasonable person” standard for negligent tort defendants with mental illnesses or any form of mental illness-based affirmative defense for intentional tort defendants. There is much debate about whether tort law should evolve to accommodate defendants with mental illnesses. This Comment seeks to dive deeper into why that debate persists.

Although there are numerous justifications for this current state of tort law, the most common rationalizations given are twofold. First, that the primary …

Emergent Regulatory Systems And Their Challenges: The Case Of Combination Medical Products, George Horvath

Washington Law Review

Where regulatory systems overlap, courts and scholars often focus on the undesirable aspects of the overlap—the ways in which systems conflict. One such context involves the regulation of prescription drugs and medical devices by the FDA’s premarket evaluation processes and by state common-law tort and products liability actions. FDA regulation and state common law are often described as separate, conflicting regulatory systems. This Article challenges that description by proposing a model in which FDA premarket evaluation and state common law function as a single regulatory system. This model brings order to the Supreme Court’s seemingly inconsistent medical products preemption cases, …

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 …

Whose Fault In An Aging World?: Comparing Dementia-Related Tort Liability In Common Law And Civil Law Jurisdictions, Trevor Ryan, Wendy Bonython

Washington International Law Journal

Age-related dementias have been identified as a global health priority, based on their rapidly rising incidence and associated economic burden. Behaviors symptomatic of dementias, such as wandering, potentially expose sufferers to increased likelihood of experiencing harm or causing harms to others. Yet what jurisprudence and case law exists on the issue of tortious liability of people with dementia is largely derived from the broader principles governing tortious liability of those with mental illness or otherwise impaired capacity. Those principles are themselves problematic, reflecting absolutist models of either personal liability (common law jurisdictions) or statutory personal immunity accompanied by imposition of …

Travelers Beware: Tort Liability In The Sharing Economy, Talia G. Loucks

Washington Journal of Law, Technology & Arts

Participation in the sharing economy makes consumers’ lives easier. From the rental of a house or room via room share sites like Airbnb to getting a ride around the city using rideshare apps such as Uber and Lyft, travelers have found less traditional and more affordable ways to explore. With these innovations, however, come risks for users. For example, Airbnb hosts do not owe guests the same duties as a hotel operator. Additionally, drivers’ insurance policies may not apply when operating for profit through a rideshare program. This Article examines the current liability issues that arise in the sharing economy. …

Adversarial Science, Sanne H. Knudsen

Articles

Adversarial science—sometimes referred to as "litigation science" or "junk science"—has a bad name. It is often associated with the tobacco industry's relentless use of science to manufacture uncertainty and avoid liability. This Article challenges the traditional conception that adversarial science should be castigated simply because it was developed for litigation. Rather, this Article urges that adversarial science is an important informational asset that should, and indeed must, be embraced.

In the ecological context, adversarial science is vital to understanding the ecological effects of long-term toxic exposure. Government trustees and corporate defendants fund intensive scientific research following major ecological disasters like …

Brief For Respondent. United States V. Wong, 134 S.Ct. 2873 (2014) (No. 13-1074), 2014 Wl 5804278, Eric Schnapper, Tom Steenson, Beth Creighton, Michael Rose

Court Briefs

QUESTIONS PRESENTED

1. Is the six-month limit on filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), jurisdictional?

2. If the six-month limit for filing suit under the Federal Tort Claims Act, 28 U.S.C. 2401(b), is not jurisdictional, is it subject to equitable tolling?

Loss-Of-Chance Doctrine In Washington: From Herskovits To Mohr And The Need For Clarification, Matthew Wurdeman

Washington Law Review

Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it …

Loss-Of-Chance Doctrine In Washington: From Herskovits To Mohr And The Need For Clarification, Matthew Wurdeman

Washington Law Review

Loss of chance is a well-established tort doctrine that seeks to balance traditional tort causation principles with the need to provide a remedy to patients whose injuries or illnesses are seriously exacerbated by physician negligence. In Washington, the doctrine continues to create significant difficulties for judges, juries, and practitioners. Wherever it has been applied, it has often created difficulties. The loss-of-chance doctrine needs clarification—definitive, sensible, and workable guidelines to ensure that loss of chance is consistently and fairly applied. Part of the problem lies in the fact that courts and litigants use the term “loss of chance” as if it …

The Long-Term Tort: In Search Of A New Causation Framework For Natural Resources Damages, Sanne H. Knudsen

Articles

Recent scientific evidence is proving that toxic releases have long-term, unintended, and harmful consequences for the marine environment. Though a new paradigm is emerging in the scientific literature--one demonstrating that long-term impacts from oil spills are more significant than previously thought--legal scholars, regulators, and courts have yet to consider the law's ability to remedy long-term ecological harms.

While scholars have exhaustively debated causation questions related to latent injuries for toxic torts, they have overlooked the equally important and conceptually similar causation problems of long-term damages in the natural resource context. Likewise, only a few courts have considered the standards of …

What Is The Media In The Age Of The Internet? Defamation Law And The Blogosphere, Lauren Guicheteau

Washington Journal of Law, Technology & Arts

As more people turn to blogs as a source of news and information, the distinction between blogs and traditional media sources has become more complex for courts dealing with First Amendment issues. In the recent case, Obsidian Finance Group, LLC v. Cox, the United States District Court for the District of Oregon held that the defendant, a blogger, was not a member of the media for the purposes of a defamation claim. The court held that media defendants must be at least negligent to be liable for defamatory publications, but because the blogger was a non-media defendant, she was …

Tort Liability In The Age Of The Helicopter Parent, Elizabeth G. Porter

Articles

Discussions of parental liability by courts and legal scholars are often tinged with fear: fear that government interference will chill parental autonomy; fear that parents will be held liable for their children’s every misdeed; and, recently, fear that a new generation of so-called “helicopter parents” who hover over their children’s every move will establish unrealistically high legal standards for parenting. However, in the context of common law suits against parents, these fears are misguided. To the contrary, courts have consistently shielded wealthier parents — those most likely to be defendants in civil suits — from exposure to liability for conduct …

Eggshell Economics: A Revolutionary Approach To The Eggshell Plaintiff Rule, Steve Calandrillo, Dustin E. Buehler

Articles

For more than a century, courts have universally applied the eggshell plaintiff rule, which holds tortfeasors liable for the full extent of the harm inflicted on vulnerable “eggshell” victims. Liability attaches even when the victim’s condition and the scope of her injuries were completely unforeseeable ex ante.

This Article explores the implications of this rule by providing a pioneering economic analysis of eggshell liability. It argues that the eggshell plaintiff rule misaligns parties’ incentives in a socially undesirable way. The rule subjects injurers to unfair surprise, fails to incentivize socially optimal behavior when injurers have imperfect information about expected accident …

Risk Magnified: Standing Under The Statist Lens, Mary D. Fan

Articles

Why some harms count before the courts and others do not is a matter of acute expressive and practical impact. Judicial refusal to see claimed injuries is an effective denial of legal personhood and a bar from powerful judicial machinery. The issue of “erratic, even bizarre” judicial recognition of supplicants vexed Professor Joseph Vining as early as 1978. Recent scholarship argues that injuries are seen through a subjective lens, reflecting the relative privilege of the judiciary and their concomitant difficulties in perceiving injuries to minorities and the poor. This is a troubling contention. So long as another, objective explanation remains, …

Incorporating Literary Methods And Texts In The Teaching Of Tort Law, Zahr K. Said

Articles

Literature is comparatively under-investigated as an arena for tort pedagogy and for first-year courses in the legal curriculum generally. Where literature tends to appear in law school, it most frequently does so in the form of stand-alone law-and-literature classes, which usually focus heavily on literature.

In teaching a first-year tort law course at the University of Washington School of Law, I have explicitly used literature to aid and amplify legal analysis. The emphasis has been on law, rather than on literature. Nonetheless, literary texts and methods helped my students investigate how the law conceives of, and expresses, duties and losses …

Admiralty's In Extremis Doctrine: What Can Be Learned From The Restatement (Third) Of Torts Approach?, Craig H. Allen

Articles

The in extremis doctrine has been part of maritime collision law in the U.S. for more than one hundred and sixty years. One would expect that a century and a half would provide ample time for mariners and admiralty practitioners and judges to master the doctrine. Alas, some of the professional nautical commentary and even an occasional collision case suggest that the doctrine is often misunderstood or misapplied. A fair number of admiralty writers fail to understand that the in extremis doctrine is not a single "in extremis rule," but rather several rules, all of which are related to the …

Blindsight: How We See Disabilities In Tort Litigation, Anne Bloom, Paul Steven Miller

Washington Law Review

Tort litigation operates with a distorted perspective of disability. It suffers from blindsight; it does not see people with disabilities the way they see themselves. Disability advocates emphasize that most people with disabilities lead happy lives. Deeply rooted biases, however, make it difficult for this perspective to be recognized. Tort litigation’s heavy emphasis on medical testimony and its repeated portrayal of plaintiffs as “less than whole” over-emphasize the physical aspects of disability and unfairly depict people with disabilities as tragic. When legal actors embrace these views, they reinforce harmful stereotypes outside the courthouse doors. Newly disabled plaintiffs are also likely …

Eastwood'S Answer To Alejandre'S Open Question: The Economic Loss Rule Should Not Bar Fraud Claims, Katherine Heaton

Washington Law Review

The economic loss rule is a judicially created doctrine that bars plaintiffs from suing in tort for purely economic losses when the entitlement to recovery arises only from a contract. In Alejandre v. Bull, the Washington State Supreme Court acknowledged that there are exceptions to the rule but explicitly declined to say whether it would recognize an exception for fraud. Washington’s appellate courts answered Alejandre’s open question, holding that the economic loss rule barred all fraud claims except for the narrow tort of fraudulent concealment. The appellate courts interpreted Alejandre broadly to apply the economic loss rule whenever the …

Clearing The Air: Ordinary Negligence In Take-Home Asbestos Exposure Litigation, Rebecca Leah Levine

Washington Law Review

Since 2005, take-home asbestos exposure claims have constituted a new wave of asbestos litigation. In contrast to employees exposed to asbestos at a worksite, take-home exposure occurred among those affected by employees who inadvertently carried asbestos home on their clothing or their tools. While some jurisdictions have rejected these claims on the basis that the defendant did not owe a legal duty to the plaintiff, the Washington Court of Appeals recently recognized the potential validity of a household member’s claim for relief for the harm he or she suffered as a result of asbestos exposure. In doing so, the court …

Open Robotics, M. Ryan Calo

Articles

Robotics is poised to be the next transformative technology. Robots are widely used in manufacturing, warfare, and disaster response, and the market for personal robotics is exploding. Worldwide sales of home robots—such as iRobot’s popular robotic vacuum cleaner—are in the millions. In fact, Honda has predicted that by the year 2020, it will sell as many robots as it does cars. Microsoft founder Bill Gates believes that the robotics industry is in the same place today as the personal computer (“PC”) business was in the 1970s, a belief that is significant given that there are now well over one billion …

Penalizing Punitive Damages: Why The Supreme Court Needs A Lesson In Law And Economics, Steve P. Calandrillo

Articles

The recent landmark Supreme Court decision addressing punitive damages in the infamous Exxon Valdez oil spill case has brought the issue of punitive awards back into the legal limelight. Modern Supreme Court jurisprudence, most notably BMW of North America, Inc. [517 U.S. 559 (1996)], State Farm [538 U.S. 408 (2003)], Philip Morris [549 U.S. 346 (2007)], and now Exxon Shipping Co. [128 S.Ct. 2605 (2008)] in 2008, has concluded that such judgments are justified to punish morally reprehensible behavior and to send a message to evildoers. The Court, however, has increasingly emphasized that the U.S. Constitution's Due Process Clause presumptively …

Employee Internet Misuse: How Failing To Investigate Pornography May Lead To Tort Liability, Jamila Johnson

Washington Journal of Law, Technology & Arts

This Article addresses a New Jersey appellate court’s holding which suggests that employers have a common law duty to investigate online misconduct by their employees. In Doe v. XYC Corp., the Appellate Division of the Superior Court of New Jersey held that an employer has a duty to act when (1) it knows that an employee’s use of the Internet would endanger a third person; and (2) it has reason to believe that it may discipline the employee for online activities in the workplace. The court stated that, under this duty to act, an employer must investigate, discipline, and …

Rebooting Cybertort Law, Michael L. Rustad, Thomas H. Koenig

Washington Law Review

Cyberspace provides an ideal legal environment for tortfeasors and online criminals because Internet Service Providers (ISPs) have no duty to mitigate harms caused by ongoing torts, crimes, and infringing acts. Courts have stretched Congress's express language in § 230 of the Communications Decency Act from the narrow purpose of immunizing ISPs as publishers to the expanded purpose of shielding them from all tort liability. This Article proposes imposing a limited duty of care on ISPs to remove or block ongoing tortious activities on their services when they have been given actual notice. This reform will harmonize American ISP liability law …