Torts Commons^™

With Malice Toward One? – Defining Nondischargeability Of Debts For Willful And Malicious Injury Under Section 523(A)(6) Of The Bankrupcy Code, Theresa J. Pulley Radwan

William & Mary Business Law Review

The federal bankruptcy system strikes a balance between the rights of debtors seeking a fresh start and the rights of creditors seeking repayment for debt. While many areas of the Bankruptcy Code provide examples of this balancing act, perhaps no area of the Code embodies this balance better than discharge of debt. Discharge of debt provides the fresh start for debtors on which the bankruptcy system rests, but the Code also protects the interests of creditors who would otherwise have their claims against the debtor discharged.

Section 523(a)(6) excepts from discharge any debt “for willful and malicious injury by the …

Community Versus Market Values Of Life, Robert Cooter, David Depianto

William & Mary Law Review

Individuals and communities make choices affecting the risk of accidental death. Individuals balance risk and cost in market choices, for example, by purchasing costly safety products or taking a dangerous job for higher pay. Communities balance risk and cost through social norms of precaution, which prescribe how much risk people may impose on others and on themselves. For example, social norms dictate that bicyclists should wear helmets and automobile passengers should wear seat belts. In both cases, the balance between the fatality risk and the cost of reducing it reveals an implicit value of a statistical life, or “VSL”— an …

Environmental Hedonism Or, Securing The Environment Through The Common Law, George P. Smith Ii, David M. Steenburg

William & Mary Environmental Law and Policy Review

No abstract provided.

What We Have Here Is A Failure To Compensate: The Case For A Federal Damages Remedy In Koontz "Failed Exactions", Christopher M. Kieser

William & Mary Environmental Law and Policy Review

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court held that …

Personal Jurisdiction Based On The Local Effects Of Intentional Misconduct, Allan Erbsen

William & Mary Law Review

Intentional misconduct frequently has extraterritorial consequences. Terrorist attacks, toxic pollution, civil rights violations, and other intentional torts can cause harm within a state despite originating outside the state. Those harms raise a vexing constitutional question: when do the local effects of intentional wrongdoing authorize personal jurisdiction over a defendant whose conduct occurred outside the forum? The answer has several significant implications. Granting or denying jurisdiction can support or undermine regulatory interests by allocating power between states, imposes burdens on the parties that can impede access to justice, and alters risk assessments that shape both socially desirable and socially destructive behavior.

Uncapping Compensation In The Gore Punitive Damage Analysis, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

BMW of North America, Inc. v. Gore rests, in part, on the “understandable relationship” between a civil jury’s award of compensatory and punitive damages. Gore designates Due Process a protectant against excessive civil jury awards, in effect outmaneuvering the civil jury trial right. Gore identifies three guideposts to determine whether punitive damages are excessive: (1) the degree of reprehensibility of a defendant’s conduct; (2) the disparity between compensatory and punitive damages; and (3) the difference between punitive damages and civil penalties authorized or imposed in comparable cases.

This Article focuses on the second of Gore’s three guideposts, which examines the …

Oil, Fire, Smoke And Mirrors: The Gulf Coast Claims Facility And Its Dangerous Precedent, Nicholas Guidi

William & Mary Environmental Law and Policy Review

No abstract provided.

Judicial Patriarchy And Domestic Violence: A Challenge To The Conventional Family Privacy Narrative, Elizabeth Katz

William & Mary Journal of Race, Gender, and Social Justice

According to the conventional domestic violence narrative, judges historically have ignored or even shielded “wife beaters” as a result of the patriarchal prioritization of privacy in the home. This Article directly challenges that account. In the early twentieth century, judges regularly and enthusiastically protected female victims of domestic violence in the divorce and criminal contexts. As legal and economic developments appeared to threaten American manhood and traditional family structures, judges intervened in domestic violence matters as substitute patriarchs. They harshly condemned male perpetrators—sentencing men to fines, prison, and even the whipping post—for failing to conform to appropriate husbandly behavior, while …

Juries, Social Norms, And Civil Justice, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates and landmark cases in the civil justice system are underlying questions about the role of the civil jury. In prior work, I examined the justifications for the civil jury as a political institution, and found them wanting in our contemporary legal system.

This Article looks closely and critically at the justification for the civil jury as an adjudicative institution and questions the conventional wisdom behind it. The focus is on tort law because the jury has more power to decide questions of law in tort than any other area of law. The Article …

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Challenging Hospital Vbac Bans Through Tort Liability, L. Indra Lusero

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Intimate Liability: Emotional Harm, Family Law, And Stereotyped Narratives In Interspousal Torts, Fernanda G. Nicola

William & Mary Journal of Race, Gender, and Social Justice

Tort liability expanded in the twentieth century, a shift scholars generally attribute to the reorganization of tort law around the fault principle. In privileging compensation and deterrence, this reconfiguration ended various restrictions on liability, long viewed as arbitrary, including limits to the recovery for emotional harm and interspousal immunities. Tort and family law scholars alike portray the end of such immunities as a milestone for gender equality. Their elimination enables spouses and partners to secure compensation for emotional and physical abuse arising in intimate relationships. Yet, tort law is not operating in this way. On the contrary, by endorsing a …

Norfolk’S Flooding Adaptation Measures: Taking Lawful Precautions Or ‘Takings’ Lawsuits?, Emilie A. Whitehurst

Virginia Coastal Policy Center

No abstract provided.

Overview Of A City’S Tort Liability Duties To Maintain And Protect Local Government Services From Sea Level Rise: Poquoson Case Study, Alex Horning

Virginia Coastal Policy Center

No abstract provided.

The Virginia Supreme Court’S 2012 Livingston Case: Localities And The Risk Of “Takings” Claims For Failure To Properly Maintain Flood Control Structures, Daniel Doty, Chris Olcott

Virginia Coastal Policy Center

No abstract provided.

“Takings” Liability For Vacating Roads In Flood-Prone Areas: Poquoson Case Study, Kelci Block

Virginia Coastal Policy Center

No abstract provided.

Battle For Disclosure Tort, Jared A. Wilkerson

W&M Law Student Publications

Legal scholars guided the creation and development of privacy torts, including what would become known as the disclosure tort, for about seventy-five years (1890-1965), a period in which most states came to recognize a common law or statutory right to privacy. Since then, scholarly attempts to curb or modify the tort have yielded little. This Article-beginning with the formalism-realism debate won by Brandeis, Pound, and Prosser and ending with modern experts--shows that notwithstanding enormous efforts by contemporary legal academics, would-be reformers of the disclosure tort have not budged it since Prosser's Restatement (Second). The Article presents both a lesson and …

Secure My Data Or Pay The Price: Consumer Remedy For The Negligent Enablement Of Data Breach, John A. Fisher

William & Mary Business Law Review

Every time we swipe our debit cards, pay our bills online, or sign up for a service like Netflix, we are entrusting important identifying information to the companies with which we do business. Most of the time, those companies take seriously the obligation to protect our data and prevent it from falling into the hands of those who would use it to benefit themselves at our expense. Some companies, however, fail to do enough to meet that burden, making it easier for identity thieves to inflict personal and financial injury on consumers. To date, our legal system has essentially denied …

The Political Puzzle Of The Civil Jury, Jason M. Solomon

Faculty Publications

At the root of many contemporary debates over the civil justice or tort system—debates over punitive damages, preemption, and tort reform more broadly—are underlying questions about the justification for the civil jury. The United States is the only country that still uses a jury in civil cases, and most civil jury trials are tort trials. The jury has more power to decide questions of law in tort than in any other area of law, so any serious discussion of tort law must have the civil jury at its center.

The debate over the jury—in both the academic literature and the …

The Bloody Truth: Examining America's Blood Industry And Its Tort Liability Through The Arkansas Prison Plasma Scandal, Sophia Chase

William & Mary Business Law Review

Most of the time, blood transfusions are safe. Over the years, however, tragedies connected to tainted blood and blood products have ripped through communities on an international scale. Blood contaminated with hepatitis C, HIV, and hepatitis B has sickened and killed recipients, causing financial, political, and legal repercussions for those found responsible.

This Note seeks to explore one such tragedy: the Arkansas Prison Plasma Scandal. Occurring between 1982 and 1994 at the Cummins Prison in Grady, Arkansas, the scandal stemmed from the operation of a blood product center in which prisoners “bled” in exchange for $7 to $10 per donation. …

Tort, Not Contract: An Argument For Reevaluating The Economic Loss Rule And Classifying Building Damage As "Other Property" When It Is Caused By Defective Construction Materials, J. Brandon Sieg

William & Mary Law Review

No abstract provided.

Rethinking Oil Spill Compensation Schemes: The Causation Inquiry, Amy D. Paul

Student Award Winning Papers

No abstract provided.

The Business Of Suing: Determining When A Professional Plaintiff Should Have Standing To Bring A Private Enforcement Action, Brandon Murrill

William & Mary Law Review

No abstract provided.

Equal Accountability Through Tort Law, Jason M. Solomon

Faculty Publications

No abstract provided.

Tort Experiments In The Laboratories Of Democracy, Alexandra B. Klass

William & Mary Law Review

This Article considers the broad range of "tort experiments" states have undertaken in recent years, as well as the changing attitudes of Congress and the Supreme Court toward state tort law. Notably, while states have limited tort rights and remedies in the products liability and personal injury areas in recent years, they have at the same time increased tort rights and remedies to address new societal problems associated with privacy, publicity, consumer protection, and environmental harm. At the same time, however, Congress has eliminated state tort law entirely in targeted areas without replacing it with corresponding federal remedies. The Supreme …

The Continuing Drift Of Federal Sovereign Immunity Jurisprudence, Gregory C. Sisk

William & Mary Law Review

With the enduring doctrine of federal sovereign immunity, it is too late in the day to suggest that the United States should be treated as an ordinary party in the federal courts. Yet as the Supreme Court has become more comfortable with the increasingly common encounter with a statutory waiver of immunity, the rigidity of interpretive approach has eased. An early jaundiced judicial attitude has resolved into a greater respect for the legislative promise of relief to those harmed by their government. After sketching the history of statutory waivers over the past century-and-a-half and examining Supreme Court decisions across the …

Compensating Nuclear Damage: A Comparative Economic Analysis Of The U.S. And International Liability Schemes, Michael G. Faure, Tom Vanden Borre

William & Mary Environmental Law and Policy Review

No abstract provided.

Victorian Tort Liability For Workplace Injuries, Michael Ashley Stein

Faculty Publications

The first decision of an injured worker suing his master for a workplace accident was reported in 1837, the year of Queen Victoria's ascension. The second Workman's Compensation Act, a comprehensive social insurance scheme, was passed in 1900, a few months before her death. The Article provides an initial account of the development of employers' liability to their servants for work-related injuries during the Victorian era. It demonstrates that English judges, and especially the Barons of the Exchequer, interpreted the law to resist employers' liability. The means these judges used included creating the defence of common employment, widely applying the …

All Bark And No Bite: A Modern Evidentiary Argument For The Retirement Of The Age-Old Pennsylvania Rule, Bin Wang

William & Mary Law Review

No abstract provided.

The Curious Complications With Back-End Opt-Out Rights, Rhonda Wasserman

William & Mary Law Review

In recent years, class members have been afforded delayed, or "back-end," opportunities to opt out of a class action once the terms of the settlement are disclosed. These back-end opt-out rights may afford only limited rights to sue outside the confines of the class action. For example, opt-out plaintiffs may be permitted to seek compensatory, but not punitive damages. Does the federal court that approved the settlement have authority to enjoin back-end opt-out plaintiffs from seeking relief in state court that exceeds the limits built into the back-end opt-out right?

Three sets of curious complications may arise if the federal …