Law Commons^™

Nothing Is Over: Ftca Claims For Toxic Torts On Native Lands, Jessica Ditmore

American Indian Law Journal

In 1976, Congress passed the Resource Conservation and Recovery Act (“RCRA”) to curtail the growing problem of disposing of hazardous waste and toxic substances generally. Decades prior, Congress established the Federal Tort Claims Act (“FTCA”) to hold the federal Government liable for tortious conduct the same way a private citizen would be. The federal government assumed the responsibility to ensure the wellbeing of Native Nations (“NN”). This is commonly referred to the “Trust Doctrine.” This duty stems from the settlement of Native American lands, and a recognition of the treaties entered into by the United States with a “moral [obligation] …

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

Environmental Pollution Control In Singapore: The Intersection Of Torts, Statutes, Regulations And Community Norms, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

Singapore is a land-scarce, densely populated, urbanized and technology-driven society. Despite her image as a clean and green environment, serious challenges remain to keep environmental pollution at bay. Both private and public laws, whether based on statutes or common law, as well as a host of regulations and community norms collectively regulate environmental pollution in Singapore. Statutory provisions targeting environmental pollution rely on criminal punishment, administrative measures and also compensatory damages awarded to victims in the event of breaches of specified statutory duties. The Environmental Pollution Control Act 1999, together with the implementing subsidiary legislation, seeks to minimise or mitigate …

The Internet Of Bodies, Andrea M. Matwyshyn

William & Mary Law Review

This Article introduces the ongoing progression of the Internet of Things (IoT) into the Internet of Bodies (IoB)—a network of human bodies whose integrity and functionality rely at least in part on the Internet and related technologies, such as artificial intelligence. IoB devices will evidence the same categories of legacy security flaws that have plagued IoT devices. However, unlike most IoT, IoB technologies will directly, physically harm human bodies—a set of harms courts, legislators, and regulators will deem worthy of legal redress. As such, IoB will herald the arrival of (some forms of) corporate software liability and a new legal …

The Externality Of Victim Care, Alan J. Meese

Alan J. Meese

No abstract provided.

Perverting Incentives When The Priceless Is Not Compensable: Victims’ Subjective Value In Negligence, Yehonatan Shiman

West Virginia Law Review

No abstract provided.

Perpetuating Injustice: Analyzing The Maryland Court Of Appeals’S Refusal To Change The Common Law Doctrine Of Contributory Negligence, Andrew White

Maryland Law Review

No abstract provided.

Money That Costs Too Much: Regulating Financial Incentives, Kristen Underhill

Indiana Law Journal

Money may not corrupt. But should we worry if it corrodes? Legal scholars in a range of fields have expressed concern about “motivational crowding-out,” a process by which offering financial rewards for good behavior may undermine laudable social motivations, like professionalism or civic duty. Disquiet about the motivational impacts of incentives has now extended to health law, employment law, tax, torts, contracts, criminal law, property, and beyond. In some cases, the fear of crowding-out has inspired concrete opposition to innovative policies that marshal incentives to change individual behavior. But to date, our fears about crowding-out have been unfocused and amorphous; …

A Corporate Duty To Rescue: Biopharmaceutical Companies And Access To Medications, Rebecca E. Wolitz

Indiana Law Journal

Controversies regarding the pricing of biopharmaceutical products are pervasive. Patients must choose between treatment and rent, prescriptions go unfilled, and health systems are forced to restrict access to life-saving medications— all because of cost. Though there is often consensus that these issues are problematic, there is disagreement as to what are appropriate solutions and who has responsibility to bring about those solutions. Most efforts to address biopharmaceutical pricing concerns focus on governmental regulation. This Article has a different focus. It provides a legal and normative analysis of a form of corporate self-regulation that could help address access and pricing concerns—a …

Human Rights Law And The Investment Treaty Regime, Jesse Coleman, Kaitlin Y. Cordes, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In its current form, the international investment treaty regime may stymie the business and human rights agenda in various ways. The regime may incentivize governments to favour the protection of investors over the protection of human rights. Investment treaty standards enforced through investor-state arbitration risk adversely affecting access to justice for project-affected rights holders. More broadly, the regime contributes to a system of global economic governance that elevates and rewards investors’ actions and expectations, irrespective of whether they have adhered to their responsibilities to respect human rights. Without comprehensive reform, investment treaties and investor-state arbitration will continue to interfere with …

Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

There were over 40 torts cases in 2019, of which just over half involved the tort of negligence. Unlike previous years, this year's review will deal only with the ten most significant judgments. A full list of torts cases is included at the end of this chapter for the convenience of readers. Of the ten cases, not surprisingly, five of them are claims in negligence. Of these, three involve medical negligence and two involve negligent misrepresentation causing economic loss. The remaining cases relate to claims under the tort of conspiracy, defamation, fraud (or deceit), malicious falsehood as well as nuisance …

Compensation At The Crossroads: Autonomous Vehicles & Alternative Victim Compensation Schemes, Tracy Hresko Pearl

William & Mary Law Review

Fully autonomous vehicles will become available to consumers within the next five to seven years. Experts predict that these vehicles will be drastically safer than their human-driven counterparts and will save thousands of lives each year in the United States alone. However, crashes will still occur, and when they do, they will raise unique and troubling issues about liability and fault that both negligence and products liability jurisprudence are not yet wellsuited to handle.

Whether the civil justice system can adjudicate autonomous vehicle crash cases fairly and efficiently impacts (a) whether manufacturers can afford to produce these vehicles or whether …

Federalism And Investor Protection: Constitutional Restraints On Preemption Of State Remedies For Securities Fraud, Manning Gilbert Warren Iii

Manning G. Warren III

Warren discusses the Private Securities Litigation Reform Act and the National Securities Market Improvement Act, among other issues. Predominant federalism postulates foreclose the proposed intrusion into investors' tort remedies traditionally allowed by the states under common law.

The Structure Of Torts, Thomas C. Galligan Jr.

Journal Articles

Tort law consists of a number of different causes of action which are seemingly unrelated except that all involve civil wrongs, other than mere breaches of contract. The various torts have different elements; some, like the nominate or intentional torts, very specific; others, like negligence, more general and vague. There is no apparent, coherent, or consistent structure applicable to all torts. This Article articulates just such a unified structure for all torts: one that arises out of and is based upon the elements of negligence. All torts involve the judicial delineation of the defendant's duty or legal obligation. All torts …

The Right Of Publicity's Intellectual Property Turn, Jennifer E. Rothman

All Faculty Scholarship

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age.

The lecture (as adapted for this Article) explores …

The Public Information Fallacy, Woodrow Hartzog

Faculty Scholarship

The concept of privacy in “public” information or acts is a perennial topic for debate. It has given privacy law fits. People struggle to reconcile the notion of protecting information that has been made public with traditional accounts of privacy. As a result, successfully labeling information as public often functions as a permission slip for surveillance and personal data practices. It has also given birth to a significant and persistent misconception — that public information is an established and objective concept.

In this article, I argue that the “no privacy in public” justification is misguided because nobody knows what “public” …

Adopting Civil Damages: Wrongful Family Separation In Adoption, Malinda L. Seymore

Faculty Scholarship

The Trump Administration’s new immigration policy of family separation at the U.S./Mexico border rocked the summer of 2018. Yet family separation is the prerequisite to every legal adoption. The circumstances are different, of course. In legal adoption, the biological parents are provided with all the constitutional protections required in involuntary termination of parental rights, or they have voluntarily consented to family separation. But what happens when that family separation is wrongful, when the birth mother’s consent is not voluntary, or when the birth father’s wishes to parent are ignored? In theory, the child can be returned to the birth parents …

Is The Grass Greener On The Other Side Of The Geofence: The First Amendment And Privacy Implications Of Unauthorized Smartphone Messages, Kearston L. Wesner

Journal of Law, Technology, & the Internet

Geofencing technology enables companies to obtain users’ physical location and deliver customized communications, including political messages. But to accomplish this, some businesses transmit user data to third parties without consent. The privacy tort of intrusion and Federal Trade Commission actions target unfair or deceptive practices, but these avenues are inadequate. Users’ privacy should be safeguarded by creating a federal privacy statute that requires opt-in notification and periodic reminders of data collection, usage, and transmission practices.

A Black Box For Patient Safety?, Nathan Cortez

Faculty Journal Articles and Book Chapters

Technology now makes it possible to record surgical procedures with striking granularity. And new methods of artificial intelligence (A.I.) and machine learning allow data from surgeries to be used to identify and predict errors. These technologies are now being deployed, on a research basis, in hospitals around the world, including in U.S. hospitals. This Article evaluates whether such recordings – and whether subsequent software analyses of such recordings – are discoverable and admissible in U.S. courts in medical malpractice actions. I then argue for reformulating traditional "information policy" to accommodate the use of these new technologies without losing sight of …

Torts: Missing The Forest For The Factors—Frederick V. Wallerich, 907 N.W.2d 167 (Minn. 2018), Michelle Gibbons

Mitchell Hamline Law Review

No abstract provided.

Healthism In Tort Law, Elizabeth Weeks

Scholarly Works

This article draws on the author's recently published book, Healthism: Health Status Discrimination and the Law (with Jessica L. Roberts) (Cambridge University Press 2018), examining tort law doctrine and policy for examples of differential treatment of health status or behaviors. Just as scholars previously have drawn attention to discrimination based on race, sex, age, and other protected categories in tort law, the article urges similar examination of tort law's potential to discriminate against the unhealthy. The article discusses the potential for healthism in the reasonably prudent person standard of care, contributory negligence, assumption of the risk, noneconomic damages caps, impaired …

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

Scholarly Works

On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

The Enforcement Of Punitive Damages Awards Between United States And Europe: An Introduction For U.S. Practitioners, Maria Veronica Saladino

The International Lawyer

This article’s objective is to introduce U.S.-based practitioners to European civil-law perspectives on whether U.S. punitive damages awards are enforceable in their jurisdictions. After a brief review concerning the birth of punitive damages within common law, valuable to better understand their cultural and legal significance, this article will outline how the prominent European jurisdictions — France, Germany, Italy, Spain, and Switzerland — have dealt with the enforcement of U.S. punitive damages awards. Through each jurisdiction’s policy principles and relevant law, this article aims to afford U.S.-based practitioners initial tips and litigation strategies about how to maximize their chances of enforcing …

Abolishing The Suicide Rule, Alex B. Long

Northwestern University Law Review

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit …

Lessons From Literal Crashes For Code, Margot Kaminski

Publications

No abstract provided.

How Liability Insurers Protect Patients And Improve Safety, Tom Baker, Charles Silver

All Faculty Scholarship

Forty years after the publication of the first systematic study of adverse medical events, there is greater access to information about adverse medical events and increasingly widespread acceptance of the view that patient safety requires more than vigilance by well-intentioned medical professionals. In this essay, we describe some of the ways that medical liability insurance organizations contributed to this transformation, and we catalog the roles that those organizations play in promoting patient safety today. Whether liability insurance in fact discourages providers from improving safety or encourages them to protect patients from avoidable harms is an empirical question that a survey …

Abolishing The Suicide Rule, Alex B. Long

Scholarly Works

Suicide is increasingly recognized as a public health issue. There are over 40,000 suicides a year in the U.S., making suicide the tenth-leading cause of death in the country. But societal attitudes on the subject remain decidedly mixed. Suicide is often closely linked to mental illness, a condition that continues to involve stigma and often triggers irrational fears and misunderstanding. For many, suicide remains an immoral act that flies in the face of strongly held religious principles. In some ways, tort law’s treatment of suicide mirrors the conflicting societal views regarding suicide. Tort law has long been reluctant to permit …