Law Commons^™

Intent And Consent In The Law Of Battery: Confusion And Controversy, Nancy J. Moore

Nancy J Moore

Abstract

“Intent and Consent in the Tort of Battery:

Confusion and Controversy”

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the …

Congress's Power To Preempt The States, Stephen Gardbaum

Pepperdine Law Review

In this Article, part of a symposium on federal preemption of state tort law, I build upon my earlier work on the nature of preemption to try and deepen the conceptual and constitutional foundations of the subject. I argue that this neglected dimension must be moved to center stage if preemption doctrine is to have a coherent and principled framework. In particular, the key issues are the nature, source, and limits of Congress's power to preempt the states. The result is that preemption should be understood as a discretionary power of Congress the source of which lies in the Necessary …

Autonomous Weapon Systems: A Coming Legal Singularity?, Benjamin N. Kastan

Benjamin N Kastan

Military robotics has long captured the popular imagination in movies, books and magazines. In recent years, this technology has moved from the realm of science fiction to reality. The precursors to truly autonomous weapons, the so-called “drones”, have generated a great deal of discussion. Few authors, however, have applied current law to the developing technology of autonomous military robots, or “autonomous weapon systems”. The treatment of such subjects in the ethics, robotics, and popular literature has generally assumed that autonomous systems either fit perfectly into existing legal regimes or threaten long-standing paradigms. This article demonstrates that neither assumption is correct. …

Pluralism And Perfectionism In Private Law, Hanoch Dagan

Hanoch Dagan

Many private law scholars strive to divine broad unified normative theories of property, contracts, torts, and restitution (or, at times, even of private law as a whole). These monist accounts suggest that one regulative principle guides the various doctrines of these complex legal fields or that, even if more than one value shapes a given field, there is one particular balance of such values that guides the entire terrain. Notwithstanding the intuitive appeal of such structural monism, this Essay calls for a pluralist turn in private law theory and argues that a structurally pluralist and moderately perfectionist understanding provides a …

Patient Protection And Decision Aid Quality: Regulatory And Tort Law Approaches, Nadia N. Sawicki

Nadia N. Sawicki

One of the most enduring debates at the intersection of administrative and tort law focuses on the challenge of identifying the most effective means of ensuring consumer safety. In some circumstances, standard-setting administrative regulations may be sufficient to protect consumers from harm while at the same supporting the growth of valuable industries. In other circumstances, regulation may need to be supplemented by a complementary tort regime that fills the compensation gap when consumers suffer injury. The discussion among policymakers and legal scholars about which system to favor is continually playing out in a variety of arenas, most notably in the …

Atypical Actors And Tort Law's Expressive Function, Eli K. Best

Eli K. Best

The rule that an actor’s cognitive disability is not considered in determining whether the actor’s conduct was negligent has been consistently criticized for being unfair and illogical. Focusing on the law’s expressive function, the goals of the disability rights movement, and the heterogeneity of cognitive disability, this Article challenges the common scholarly refrain and argues that the rule is more progressive than the alternative. However, the rule’s articulated justifications may inadvertently perpetuate stereotypes about cognitive disability. Thus, this Article proposes new rationales for the rule, which will allow courts to retain the optimal rule without causing expressive harm.

Blue Jeans, Chewing Gum, And Climate Change Litigation: American Exports To Europe, Daniel Hare

Daniel Hare

This paper analyzes how American-style climate change litigation might be adopted by the European Union (EU) and projects potential methods by which the EU might employ the U.S. model, if it indeed chooses to take the climate change battle to the courts. By synthesizing existing U.S. case law in the environment and climate change fields, the paper roughly defines the “American model” of climate change litigation as parens patriae actions, oftentimes based in the tort of public nuisance, brought by states and other sovereign entities against polluter-defendants. The structural differences between the common law United States and predominantly civil law …

A Prediction Is Worth Four Thousand Words: The Third Circuit Boldly Holds That The Supreme Court Of Pennsylvania Will Apply The Restatement (Third) In Covell V. Bell Sports, Inc., Craig Lawrence Bazarsky

Craig Bazarsky

The Third Circuit has struggled with whether to apply the Restatement (Second) of Torts or Restatement (Third) when sitting in diversity jurisdiction in Pennsylvania. This began in Berrier v. Simplicity Manufacturing, Inc., when the Third Circuit predicted that the Supreme Court of Pennsylvania would reject the Restatement (Second) and adopt the Restatement (Third). The Supreme Court of Pennsylvania was set to decide the issue in Bugosh v. I.U. North America, Inc., after granting allocatur in 2008; however, they dismissed the appeal as improvidently granted in 2009, and neither adopted the Restatement (Third) nor reaffirmed the Restatement (Second). The Third Circuit, …

Intent And Consent In The Law Of Battery: Confusion And Controversy, Nancy J. Moore

Nancy J Moore

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various …

Where’S The Outrage? “Outrageous” Conduct In Analyzing The Tort Of Intentional Infliction Of Emotional Distress In The Wake Of Snyder V. Phelps, Constance A. Anastopoulo, Daniel J. Crooks Iii

Constance A. Anastopoulo

This Article presents the historical evolution of the tort of Outrage focusing on a discussion of recovery for mental distress prior to the tort’s status as an independent cause of action including the culmination of the tort as announced in the Restatement (Second) Section 46. After presenting this evolution, this Article argues that the key inquiry of the tort of Outrage has been the nature of the defendant’s conduct rather than the severity of the plaintiff’s alleged injury, but now state courts have begun to redefine and reform the tort away from this central element. This Article concludes with the …

Negligence, Responsibility, And The Clumsy Samaritan: Is There A Fairness Rationale For The Good Samaritan Immunity?, Dov A. Waisman

Dov A Waisman

The Good Samaritan immunity has been roundly criticized for failing in its stated goal of encouraging physicians and laypersons to volunteer assistance in emergencies. Yet in the half century since its inception, the immunity has been adopted in one form or another by all fifty states and shows no sign of disappearing any time soon. This Article represents the first serious attempt in the literature to evaluate a rarely-discussed rationale for the immunity which may explain its persistence: that it is unfair to impose negligence liability on the clumsy Samaritan, i.e., someone who, without obligation, altruistically comes to the aid …

Tortifying Employment Discrimination, Charles A. Sullivan

Charles A. Sullivan

Although Title VII is often described as a “statutory tort,” that label has, until recently, been mostly metaphorical. In Staub v. Proctor Hospital Corp., however, the Supreme Court took an important first step in incorporating concepts from tort law into the antidiscrimination statutes. Although Staub received some attention as a “cat’s paw” (or subordinate bias) liability decision, it will have broader significance for two reasons.

First, the Court explicitly adopted tort law’s definition of “intent” for statutory discrimination cases, thus raising a threshold question of the what it means to “intend to discriminate.” This Article suggests that, rather than widening …

False Certainty: Judicial Forcing Of The Quantification Of Risk, Diana R. H. Winters

Diana R. H. Winters

Risk, which is by definition only the possibility of harm, is speculative and amorphous. To transform risk into something more concrete and measurable, courts reviewing risk determinations by agencies or individuals in certain contexts will insist that the parties quantify this risk. However, forcing such quantification may undercut the benefits of judicial review. This Article looks at the judicial forcing of the quantification of risk in two contexts: first, the review of agency action, and second, the determination of whether probabilistic injury satisfies the injury-in-fact standing requirement. By juxtaposing these two contexts, the Article illuminates the work that judges think …

Of Frightened Horses And Autonomous Vehicles: Tort Law And Its Assimilation Of Innovations, Kyle Graham

Faculty Publications

This symposium contribution considers five recurring themes in the application of tort law to new technologies. First, the initial batch of cases presented to courts may be atypical of later lawsuits that implicate the innovation, yet relate rules with surprising persistence. Second, these cases may be identified, and resolved, by reference to analogies that rely on similarities in form, and which do not wear well over time. Third, it may be difficult to isolate the unreasonable risks generated by an innovation from the benefits it is perceived to offer. Fourth, potential claims by early adopters of the technology may be …

Law Of The Intermediated Information Exchange, Jacqueline Lipton

Jacqueline D Lipton

When Wikipedia, Google and other online service providers staged a ‘blackout protest’ against the Stop Online Piracy Act in January 2012, their actions inadvertently emphasized a fundamental truth that is often missed about the nature of cyberlaw. In attempts to address what is unique about the field, commentators have failed to appreciate that the field could – and should – be reconceputalized as a law of the global intermediated information exchange. Such a conception would provide a set of organizing principles that are lacking in existing scholarship. Nothing happens online that does not involve one or more intermediaries – the …

Snyder V. Phelps And Th Unfortunate Death Of Intentional Infliction Of Emotional Distress As A Speech-Based Tort, Ww Hopkins Ph.D.

WW Hopkins Ph.D.

Beginning with New York Times Co. v. Sullivan and extending to Hustler Magazine v. Falwell and beyond, the Supreme Court of the United States established a reasonable balance between free speech interests and the rights of private persons not involved in matters of public debate from personal, verbal attacks. The framework for that protection was the tort of intentional infliction of emotional distress, which required plaintiffs to overcome an onerous burden of proof in order to prevail. In March 2011, however, the Court ruled in Snyder v. Phelps that the verbal attack of the Westboro Baptist Church against Albert Snyder …

The Missing Normative Dimension In Brian Leiter's "Reconstructed" Legal Realism, Edmund Ursin

San Diego Law Review

Legal Realism has undergone a revitalization in academia. In a series of articles over the past decade and a half, and in a 2007 book, Brian Leiter has offered a "philosophical reconstruction" of Legal Realism... In the forthcoming Article, I will seek to clarify further the normative dimension of Legal Realism. I will suggest that it is a mistake to divide Legal Realists into quietist camps. This is because these terms refer to two distinct phenomena. Nonquetism in a view of the lawmaking role: judges are legislators-they make law and policy plays a role in their lawmaking. Quietism reflects a …

Book Review Of The Measure Of Injury: Race, Gender, And Tort Law, By Martha Chamallas And Jennifer B. Wriggins, Anne Bloom, Julie Davies

Journal of Legal Education

No abstract provided.

Phantom Torts And Forum Non Conveniens Blocking Statutes: Irony And Metonym In Nicaraguan Special Law 364, Jeff Todd

University of Miami Inter-American Law Review

No abstract provided.

University Of Baltimore Symposium Report: Debut Of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America”, Zena D. Crenshaw-Logal

Zena Denise Crenshaw-Logal

On the first of each two day symposium of the Fogg symposia, lawyers representing NGOs in the civil rights, judicial reform, and whistleblower advocacy fields are to share relevant work of featured legal scholars in lay terms; relate the underlying principles to real life cases; and propose appropriate reform efforts. Four (4) of the scholars spend the next day relating their featured articles to views on the vitality of stare decisis. Specifically, the combined panels of public interest attorneys and law professors consider whether compliance with the doctrine is reasonably assured in America given the: 1. considerable discretion vested in …

An Essay On Torts: States Of Argument, Marshall S. Shapo

Pepperdine Law Review

This essay summarizes high points in torts scholarship and case law over a period of two generations, highlighting the “states of argument” that have characterized tort law over that period. It intertwines doctrine and policy. Its doctrinal features include the traditional spectrum of tort liability, the duty question, problems of proof, and the relative incoherency of damages rules. Noting the cross-doctrinal role of tort as a solver of functional problems, it focuses on major issues in products liability and medical malpractice. The essay discusses such elements of policy as the role of power in tort law, the tension between communitarianism …

Exporting United States Tort Law: The Importance Of Authenticity, Necessity, And Learning From Our Mistakes, Victor E. Schwartz, Christopher E. Appel

Pepperdine Law Review

No abstract provided.

Torts As Public Wrongs, Michael L. Rustad

Pepperdine Law Review

This Article is a rejoinder to the civil recourse theorist's claim that tort law will be better served by retreating to the philosopher's prefecture of private wrongs. A subsidiary goal of this Article is to refute John Goldberg's claim that my sociologically-inspired theory of torts as public wrongs serves the interests of tort reformers rather than American consumers. In a nutshell, civil recourse theory is "tort reform in disguise," not the concept of torts as fulfilling wide-ranging purposes such as the social control of corporations. If judges adopt civil recourse theory, they will be less inclined to recognize new causes …

Peculiar Risk In American Tort Law, Ellen S. Pryor

Pepperdine Law Review

American tort law includes a significant strand of liability tied to an intriguing concept variously termed “peculiar risk,” “special danger,” and “special risk inherent in the work,” among others. Peculiar risk presents a basis for liability different from other standards or actions that trigger liability in tort law - it is different from intent, recklessness, negligence, nuisance, and abnormally dangerous activity. Both England and the United States endorsed versions of the doctrine in the late nineteenth and early twentieth centuries. Yet, by 1965, American and English tort law had sharply diverged on the doctrine. American courts continued to apply it; …

The Impact Of U.S. Tort Law In Canada, Lewis N. Klar

Pepperdine Law Review

This paper briefly summarizes some of the reasons offered by Professor Peter Cane for the minimal impact that U.S. tort law has had on the tort law of Australia and New Zealand. It discusses this matter from the perspective of Canadian tort law. It suggests that, for a variety of reasons, Canada is in a unique position; it shares some of the same characteristics of the Commonwealth countries which discourage the adoption of U.S. tort law, but at the same time is exposed to countervailing factors which tend to bring Canadian and U.S. tort laws closer together. It illustrates this …

The Impact Of The Civil Jury On American Tort Law, Michael D. Green

Pepperdine Law Review

This article, a contribution to a symposium on the what American tort law can contribute to the rest of the world expresses skepticism that a considerable swath of U.S. tort law would be of interest to the rest of the world. The thesis is that American tort law has been shaped by the existence of the civil jury, unique to the U.S, and areas of domestic tort law so influenced have no utility internationally. The article catalogues many such areas and discusses several of them.

Tort In Three Dimensions, John C.P. Goldberg

Pepperdine Law Review

Should our tort law serve as a model for other nations? The answer depends in part on what one understands it to be. Since the mid-Twentieth Century, progressives have favored 'thin' accounts that treat tort law as having but two dimensions: forum and function. Tort, they say, provides a general forum for grievances and, by doing so, performs certain governmental functions, such as deterrence of anti-social conduct, compensation of injury victims, and the bringing to light of abuses of power. Progressives have favored thin accounts mainly because those accounts emphasize the extent to which tort law enables courts to achieve …

What The United States Taught The Commonwealth About Pure Economic Loss: Time To Repay The Favor, Bruce Feldthusen

Pepperdine Law Review

No abstract provided.

International Tobacco Litigation's Evolution As A United States Torts Law Export: To Canada And Beyond?, Richard L. Cupp Jr.

Pepperdine Law Review

In the late 1990’s, the states’ healthcare reimbursement lawsuits against the tobacco industry were settled for approximately $246 billion. In the wake of this enormous settlement, many similar lawsuits were initiated in other nations or by other nations. Most of these early healthcare reimbursement lawsuits failed. However, in 2005, the World Health Organization Framework Convention on Tobacco Control was finalized by over 150 nations, and today has been ratified by 168 nations. The Framework encourages nations to consider tort litigation against tobacco sellers as a way to limit tobacco usage. Canada’s provinces have been particularly aggressive in seeking to use …

Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford

Pepperdine Law Review

With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the …