Law Commons^™

In Mourning Of Bereavement Damages, Iain Field

Iain Field

In most Australian jurisdictions, bereavement is not compensable in an action for wrongful death. Unless such loss can be shown to amount to a recognised psychiatric injury, it is also precluded from recovery in the law of negligence. But why must a plaintiff demonstrate some reaction to the death of a loved one that transcends mere grief before the civil law will compensate his or her loss? Are Australian jurisdictions unusual in precluding such awards, and can this exclusion be rationalised with the compensation of non-pecuniary loss (including bereavement) in other areas of the law?

“Danger Is My Business”: The Right To Manufacture Unsafe Products, Richard C. Ausness

Law Faculty Scholarly Articles

While no one would dispute that safety is a desirable objective, it may not always be an absolute priority. Rather, in some cases, other societal interests such as personal autonomy, consumer choice, product cost, and performance may trump legitimate safety goals. This is reflected in some of the doctrines and defenses that have evolved to protect the producers of unsafe products against tort liability. Some of these doctrines, such as those determining liability for the producers of optional safety equipment, inherently dangerous products, products with obvious hazards, and prescription drugs and medical devices, are part of the law of products …

Mutual Pharmaceutical Co. V. Bartlett: A Need For “Explicit” Congressional Action And State Tort Law Reform, Kara A. Ritter

Kara A Ritter

No abstract provided.

A Good Lawyer, Brigham A. Fordham

Journal of Legal Education

No abstract provided.

Des And A Proposed Theory Of Enterprise Liability, Naomi Sheiner

Fordham Law Review

To commemorate our founding in 1914, the Board of Editors has selected six influential pieces published by the Law Review over the past 100 years and will republish one piece in each issue.
The first piece selected by the Board is DES and a Proposed Theory of Enterprise Liability. This Comment, written in 1978 by Fordham Law Review staff member Naomi Sheiner, helped to pioneer the concept of enterprise liability. It has been cited by nearly 250 scholarly articles and in more than 100 cases, including Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980), the leading case …

Reputational Injury Without A Reputational Attack: Addressing Negligence Claims For Pure Reputational Harm, Bryson Kern

Fordham Law Review

This Note examines the unsettled relationship between defamation and negligence. The law of defamation, through the torts of libel and slander, constitutes a well-developed and complex body of state common law and constitutional considerations. However, some claims for reputational harm may fall outside of this framework, as the law of defamation does not account for all of the ways that an individual’s reputation may be injured. Thus, plaintiffs sometimes bring negligence claims to seek redress for damage to reputation.
When a plaintiff brings a negligence claim for pure reputational harm, the court is faced with a variety of options for …

"Smile, You're On Cellphone Camera!": Regulating Online Video Privacy In The Myspace Generation, Jacqueline D. Lipton

Akron Law Faculty Publications

In the latest Batman movie, Bruce Wayne’s corporate right hand man, Lucius Fox, copes stoically with the death and destruction dogging his boss. Interestingly, the last straw for him is Bruce’s request that he use digital video surveillance created through the city’s cellphone network to spy on the people of Gotham City in order to locate the Joker. Does this tell us something about the increasing social importance of privacy, particularly in an age where digital video technology is ubiquitous and largely unregulated?

While much digital privacy law and commentary has focused on text files containing personal data, little attention …

Who Owns "Hillary.Com"? Political Speech And The First Amendment In Cyberspace, Jacqueline D. Lipton

Akron Law Faculty Publications

In the lead-up to the next presidential election, it will be important for candidates both to maintain an online presence and to exercise control over bad faith uses of domain names and web content related to their campaigns. What are the legal implications for the domain name system? Although, for example, Senator Hillary Clinton now owns ‘hillaryclinton.com’, the more generic ‘hillary.com’ is registered to a software firm, Hillary Software, Inc. What about ‘hillary2008.com’? It is registered to someone outside the Clinton campaign and is not currently in active use. This article examines the large gaps and inconsistencies in current domain …

“We, The Paparazzi”: Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton

Akron Law Faculty Publications

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Repairing Online Reputation: A New Multi-Modal Regulatory Approach, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected digital society, high profile examples of online abuses abound. Cyberbullies launch attacks on the less powerful, often significantly damaging victims’ reputations. Outside of reputational damage, online harassment, bullying and stalking has led to severe emotional distress, loss of employment, physical assault and even death. Recent scholarship has identified this phenomenon but has done little more than note that current laws are ineffective in combating abusive online behaviors. This article moves the debate forward both by suggesting specific reforms to criminal and tort laws and, more importantly, by situating those reforms within a new multi-modal framework for combating …

Law Of The Intermediated Information Exchange, Jacqueline D. Lipton

Akron Law Faculty Publications

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 …

Cyberlaw 2.0, Jacqueline D. Lipton

Akron Law Faculty Publications

In the early days of the Internet, Judge Frank Easterbrook famously dismissed the idea of an emerging field of cyberspace law as akin to a “law of the horse”— a pastiche of unrelated legal principles tied together only by virtue of applying to the Internet, having no unifying principles that would teach us anything meaningful. This article revisits Easterbrook’s assertions with the benefit of hindsight. It suggests that subsequent case law and legislative developments in fact do support a distinct cyberlaw field. It introduces the novel argument that cyberlaw is a global “law of the intermediated information exchange.” In other …

Copyrighting "Twilight": Digital Copyright Lessons From The Vampire Blogosphere, Jacqueline D. Lipton

Akron Law Faculty Publications

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright …

Combating Cyber-Victimization, Jacqueline D. Lipton

Akron Law Faculty Publications

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Celebrity In Cyberspace: A Personality Rights Paradigm For Personal Domain Name Disputes, Jacqueline D. Lipton

Akron Law Faculty Publications

When the Oscar™-winning actress Julia Roberts fought for control of the domain name, what was her aim? Did she want to reap economic benefits from the name? Probably not, as she has not used the name since it was transferred to her. Or did she want to prevent others from using it on either an unjust enrichment or a privacy basis? Was she, in fact, protecting a trademark interest in her name? Personal domain name disputes, particularly those in the space, implicate unique aspects of an individual’s persona in cyberspace. Nevertheless, most of the legal rules developed for these disputes …

Mental Disabilities And Duty In Negligence Law: Will Neuroscience Reform Tort Doctrine?, Jean Eggen

Jean M. Eggen

Recent developments in neuroscience may contribute to some long-needed changes in negligence law. One negligence rule in need of reform is the duty rule allowing physical disabilities to be considered in determining whether a party acted negligently, but disallowing mental disabilities for adult tortfeasors. Further, this bifurcated rule applies imposes an objective standard only on adults alleged to have acted negligently. A subjective standard applies to all parties in intentional torts and to children in negligence actions. Courts justify the bifurcated rule for adults on policy grounds, but these policy underpinnings are no longer valid in contemporary society. More accurate …

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to …

Prosser's Bait-And-Switch: How Food Safety Was Sacrificed In The Battle For Tort's Empire, Denis W. Stearns

Nevada Law Journal

No abstract provided.

Please Provide The Entire Electronic Medical Record, Jonathan H. Lomurro Esq. Llm

Jonathan H. Lomurro Esq. LLM

No abstract provided.

Blameworthiness, Intent And Cultural Dissonance, Nancy Kim

Nancy Kim

Criminal law assumes that the judge and jury share the same cultural and experiential framework as the defendant; accordingly, crimes are defined with this assumption as an underlying premise. In this article, I will explain how the determination of mens rea often fails to reflect culpability because the definition of crimes fail to account for the cultural dissonance that often exists between the judge/juror and the accused. In this Article, I propose an analysis and reconceptualization of intent that bridges gaps in perception and understanding attributable to cultural dissonance.

Website Proprietorship And Online Harassment, Nancy Kim

Nancy Kim

Although harassment and bullying have always existed, when such behavior is conducted online, the consequences can be uniquely devastating. The anonymity of harassers, the ease of widespread digital dissemination, and the inability to contain and/or eliminate online information can aggravate the nature of harassment on the Internet. Furthermore, section 230 of the Communications Decency Act provides Web site sponsors with immunity for content posted by others and no incentive to remove offending content. Given the unique nature of online harassment, ex post punitive measures are inadequate to redress grievances. In this Article, I propose the imposition of proprietorship liability upon …

Imposing Tort Liability On Websites For Cyber Harassment, Nancy Kim

Nancy Kim

Several female law students were the subject of derogatory comments on AutoAdmit.com, a message board about law school admissions. When one of the women asked the website administrator to remove certain comments, the administrator discussed her request in an online post, prompting further attacks. An undergraduate student’s rape was revealed on a gossip site, JuicyCampus.com, where posters engaged in a cruel session of “blame the victim.” Another student on that site was falsely identified, by name, as being a stalker, bi-polar, and suicidal. When officials at her university asked JuicyCampus.com to remove the most egregious posts, the company refused. These …

Website Design And Liability, Nancy Kim

Nancy Kim

Two regrettable behaviors have emerged online: the posting of content about others without their consent; and impulsive postings with no consideration of long-term consequences. Website operators can either encourage or discourage these regrettable behaviors and influence their consequences through the design of their website and by the fostering of norms and codes of conduct. Unfortunately, courts interpret section 230 of the Communications Decency Act as providing websites with broad immunity. In an earlier article, I argued that a proprietorship standard should be imposed upon websites, which would require them to take reasonable measures to prevent foreseeable harm. This article further …

Restatement Of Torts, A, Stephen D. Sugarman

Stephen D Sugarman

No abstract provided.

Self-Defense Against Robots, A. Michael Froomkin, Zak Colangelo

A. Michael Froomkin

This paper examines when, under U.S. law, humans may use force against robots to protect themselves, their property, and their privacy. May a landowner legally shoot down a trespassing drone? May she hold a trespassing autonomous car as security against damage done or further torts? Is the fear that a drone may be operated by a paparazzo or a peeping Tom sufficient grounds to disable or interfere with it? How hard may you shove if the office robot rolls over your foot? This paper addresses all those issues and one more: what rules and standards we could put into place …

Litigation Technology For The Modern Practitioner, Jonathan H. Lomurro Esq. Llm, Christopher T. Campbell Esq, Matthew K. Blaine Esq, Stephanie L. Lomurro Esq, Christina V. Harvey Esq

Jonathan H. Lomurro Esq. LLM

No abstract provided.

Texas Supreme Court Rejects “Any Exposure” Causation In Asbestos Litigation, Richard O. Faulk

Richard Faulk

The Texas Supreme Court has firmly rejected the latest effort to reopen the floodgates for asbestos litigation in Texas. While the Court rejected a formalistic adherence to “but for” causation in mesothelioma, the essence of “but for” still survives because, “but for” legally sufficient proof of exposure to the particular defendant’s product, the defendant cannot be held liable. The requirement of legally sufficient proof applicable to exposure to each defendant’s product remains, and the challenges associated with meeting that requirement remain the same. Perhaps the cohesiveness of this holding will influence other states to define “substantial factor” similarly, or perhaps …

Proximity-Driven Liability, Bryant Walker Smith

Faculty Publications

This working paper argues that commercial sellers’ growing information about, access to, and control over their products, product users, and product uses could significantly expand their point-of-sale and post-sale obligations toward people endangered by these products. The paper first describes how companies are embracing new technologies that expand their information, access, and control, with primary reference to the increasingly automated and connected motor vehicle. It next analyzes how this proximity to product, user, and use could impact product-related claims for breach of implied warranty, defect in design or information, post-sale failure to warn or update, and negligent enabling of a …

Breaking The Ice: How Plaintiffs May Establish Premises Liability In "Black Ice" Cases Where The Dangerous Condition Is By Definition Not Visible Or Apparent To The Property Owner, Hon. Mark Dillon

Hon. Mark C. Dillon

Plaintiffs that are injured as a result of encounters with "black ice," as distinguished from regular ice, face peculiar difficulties in establishing liability against property owners for the dangerous icy conditions on their premises. Black ice results from a unique process under certain conditions by which air bubbles are expelled from water during the freezing process, rendering the ice virtually invisible to the naked eye. Property owners therefore are not typically on actual or constructive notice of black ice conditions as to become subject to the legal requirement of undertaking measures to remedy the conditions. This article explores the law …

The Market In Unmatured Tort Claims: Twenty-Five Years Later, Stephen Marks

Pace Law Review

In an article in 1989 in the Virginia Law Review, Professor Robert Cooter argued for changes in the law that would facilitate the development of a market in unmatured tort claims. An unmatured tort claim is a potential claim that a potential victim has before any injury has occurred. Cooter proposed that potential victims have the right to sell their unmatured tort claims. That is, Cooter proposed that potential victims be allowed to sell their right to sue even before an accident or injury ever occurs. Even twenty-five years later, the proposal remains both bold and imaginative, and yet it …