Torts Commons^™

From Waiver To Shield: The Routine Misapplication Of The Federal Tort Claims Act’S Discretionary Function Exception, Alexander Sitnikov

Cardozo Law Review

When a pedestrian trips and falls on a defective sidewalk, liability usually turns on negligence. But when the property surrounding the sidewalk belongs to the federal government, tort liability often vanishes altogether. This result is just one of the many shortcomings of the Federal Tort Claims Act (FTCA) and one of its most controversial and heavily litigated provisions: the discretionary function exception (“DFE”). This Note explores the current judicial interpretations of the FTCA and DFE, which often work in conjunction with state laws and federal regulations. Despite the central public policy rationale and congressional intent surrounding the FTCA and its …

Seeing Is Believing? Deepfakes In Financial Markets, Hadar Y. Jabotinsky, Michal Lavi

Cardozo Arts & Entertainment Law Journal

An AI-powered tool recently mimicked Warren Buffett's image and voice so convincingly that even his own family could have been deceived. This striking example highlights the transformative potential of voice cloning and deepfakes. This innovative technology leverages artificial intelligence (AI) to create hyper-realistic audio and video content. By blurring the boundaries between authenticity and synthetic creation, deepfakes make it possible to fabricate moments that never occurred. Recent advancements in AI and user-friendly software have made deepfakes more accessible andfurther contributed to the proliferation of deepfakes, enabling even individuals with minimal technical skills to produce compelling deepfakes at little to no …

Gregory Keating’S Framework For Understanding Tort Law, Martin J. Stone

Articles

Gregory Keating seeks to ground tort rights and obligations in a balancing of people’s objective interests in liberty and security, with security taking priority because it is a requirement of effective agency. I argue that Keating’s approach shares in the structural shortcomings of the economic theories he criticizes. Both theories appeal to monadic, free-standing values (efficiency, effective agency) that concern individual parties in isolation; neither theory gives an adequate account of tort law’s relational (transactional) structure. The common law distinction between misfeasance and nonfeasance illustrates the point. Keating’s harm-based framework fails to explain tort law’s most basic duty limitation, the …

The Return Of Private Law, Anthony J. Sebok

Articles

Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.

Leveling The Playing Field: Aligning Title Ix And Title Vii Sexual Harassment Standards To Ensure Equity For Female Hazing Victims, Cammie Swain

Cardozo Law Review

As hazing has become more common among student-athletes at colleges and universities throughout the country, litigants have used Title IX as a legal remedy to hold these educational institutions accountable for hazing practices on their campuses. However, while various male plaintiffs have brought successful Title IX cases alleging that their hazing experiences constitute actionable discrimination under Title IX, fewer women have had success in bringing such cases. This disparity looms especially large as the number of hazing incidents among women has grown and as intercollegiate athletics has transformed into a massive, lucrative industry. Since 2021, student-athletes have been able to …

Buyer, Beware Of Addiction, Erin E. Meyers, Clayton J. Masterman

Cardozo Law Review

Addictive products kill more than 700,000 people in the United States every year. Despite the large-scale risks that addiction poses, the law requires manufacturers of addictive products to disclose little-to-no information about the risk of addiction—the single most consequential characteristic of a class of products contributing to mass death every year.

While consumers understand that addictive products are, in fact, addictive, they generally do not understand the magnitude of the addiction risks that they face. Metaphorically, consumers understand that they are playing a game of “Russian roulette” when they consume an addictive product—but they play without knowing how many bullets …

The End(S) Of Bankruptcy Exceptionalism: Purdue Pharma And The Problem Of Social Debt, Jonathan C. Lipson, Pamela Foohey

Cardozo Law Review

The Supreme Court’s recent 5-4 decision in the controversial chapter 11 bankruptcy reorganization of opioid-maker Purdue Pharma ends the use of nonconsensual third-party “releases,” which discharge (eliminate) liabilities of nondebtors who may share liability with a corporate debtor. Although the majority opinion is correct that the Bankruptcy Code does not permit this, it failed to recognize the problematic exceptionalism of the lower courts which approved those releases or the “social” qualities of Purdue Pharma’s mass tort liability.

Bankruptcy exceptionalism has been a contested concept since it emerged over fifteen years ago and reflects a willingness to bend the rule of …

Intuitions In Tort Law And Theory, James A. Macleod

Articles

This Essay highlights the many ways that ordinary conceptual and moral intuitions shape the development of tort law. It further argues that, for a range of doctrinal and institutional reasons, such intuitions deserve a central place in tort theorists’ efforts to explain, predict, justify, and reform the law of torts. Finally, given the stakes for both positive and normative tort theory, the Essay emphasizes the need for more systematic empirical research into the content and operation of people’s tort-relevant intuitions.

Designing A Victims’ Compensation System Amidst California’S Insurance Crisis: The Aftermath Of The 2025 Los Angeles Wildfires, Federica Simonelli

Cardozo Journal of Conflict Resolution

This Commentary will explore critical aspects necessary for creating victims’ compensation mechanisms capable of handling claims stemming from the 2025 Los Angeles wildfires from a theoretical perspective. Drawing from the successful examples of the 2020 PG&E Fire Victim Trust, the 2023 Maui Wildfires compensation schemes, and other forms of dispute resolution (such as mediation), this Commentary will demonstrate that the challenging fallouts of environmental disasters pose increased challenges and necessitate unique dispute system design to better respond to the need for fair and equitable solutions. These systems increasingly rely on settlement funds tailored to claimants’ specific needs and have proven …

Hospitals Pay The Price: Sex Abuse Cover-Ups Accountable Under New York Adult Survivors Act, Olivia Cohen

Cardozo Journal of Equal Rights & Social Justice

The note argues that hospitals often fail to address sexual abuse, prioritizing their reputations over patient safety, and that the New York Adult Survivors Act (NYASA) provides a critical but insufficient avenue for accountability. While the NYASA allows survivors to sue abusers and enabling institutions, its one-year lookback window excludes many victims, emphasizing the need for expansion to ensure justice and institutional reform.

Artificial Intelligence And Its Exploitation By The Fashion Industry, Stephanie Solis-Kepes

Cardozo International & Comparative Law Review

The note explores the transformative impact of artificial intelligence (AI) on the fashion industry, highlighting its potential to enhance efficiency, innovation, and customer experience. However, it underscores the critical legal and ethical challenges, including data privacy, intellectual property rights, supply chain transparency, and diversity issues, that must be addressed to ensure responsible and equitable adoption of AI technologies.

Data Privacy By Contract, Ifeoma Ajunwa, Austin Kamer

Cardozo Law Review

Protecting consumer privacy rights presents a particular challenge given the prevalence of data breaches. This Article notes that current law is woefully inadequate in protecting the privacy rights of consumers. Notably, the law fails in the following four areas: (1) classification of consumer data, (2) lack of a comprehensive approach, (3) after-the-fact focus, and (4) limited accountability for third parties. Although it may be impossible to eliminate all data breaches, more regulations can bolster protection without restricting technological advancements. This Article proposes a contractual approach to privacy protection for consumers. It argues that the creation of mandatory implied contractual terms …

The Need For Fentanyl-Specific Drug Education In Schools, Emma Guggenheimer

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of state legislation requiring fentanyl-specific drug education in K-12 schools to combat the escalating opioid epidemic, particularly among teenagers. It emphasizes the critical role of schools in providing comprehensive education to raise awareness about the dangers of fentanyl and prevent overdose deaths. The proposal includes mandates for fentanyl-awareness campaigns, updated curricula, and the use of tools like fentanyl test strips and naloxone in schools.

Holocaust Denial Legislation In The United Kingdom, Germany, Austria, And The United States: How The Law Presently Addresses The Issue And Proposals For Reform, Madeline Epstein

Cardozo International & Comparative Law Review

The note examines the legal frameworks addressing Holocaust denial in the United Kingdom, Germany, Austria, and the United States, highlighting the need for more robust legislation to combat Holocaust denial effectively. It argues that while countries like Germany and Austria have stringent laws criminalizing Holocaust denial, jurisdictions like the U.S. and U.K. rely on civil remedies, which may be insufficient. The analysis advocates for adopting legal measures that balance free speech with the protection of historical truth and human dignity.

Satire And Actual Malice: Expanding The Reasonable Reader Analysis For The Modem Era, Cory Crystal

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok

Articles

Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …

Damages: Symposium Presentation Of Anthony Sebok, Anthony J. Sebok

Articles

No abstract provided.

Aaron Twerski: Practical Wisdom At Ground Zero, Anthony J. Sebok

Articles

This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …

Inventing Deportation Arrests, Lindsay Nash

Articles

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

Harm Egalitarianism, Michael E. Herz

Articles

In the last few years, law schools and law professors have given new attention to how questions of race can be interwoven into courses that are not explicitly about race. Much has been written about how to do so in both first-year and upper-level courses, and, from all reports, the law school classroom has meaningfully changed. My sense, though it is completely impressionistic and unscientific, is that the typical Administrative Law course may have changed less than many others. It seems fair to say, at least, that there has not developed a standard suite of topics that a professor wanting …

Mission Impossible? The Case For Municipal Tort Liability Reform In A Post-Valdez World, Shelley Wu

Cardozo Law Review

No abstract provided.

Just Kidding? The Problem Of Unenforceable Waivers Of Liability, Anthony J. Sebok

Online Publications

In their forthcoming article, Unenforceable Waivers, Edward Cheng, Ehud Guttel, and Yuval Procaccia (“CGP”) ask an embarrassing question: Why do businesses require customers to sign waivers that have been struck down by courts in published opinions that are available not only to their lawyers but also to their customers? In this Jot, I praise CGP for their sharp eye–this is torts scholarship at its best–and then evaluate their suggestions for reform.

Foreseeability Conventions, John Fabian Witt, Morgan Savige

Cardozo Law Review

How has the foreseeability standard survived its critics? Law relies on foreseeability to solve hard legal problems in a vast array of doctrinal fields. But for a century and more, critics have pilloried the standard as hopelessly indeterminate. Decisionmakers, observe the critics, can characterize virtually any consequence as either foreseeable or unforeseeable. It all depends on how one tells the story. This Article explains the conundrum of foreseeability’s puzzling persistence by offering a novel account of how foreseeability has flourished in fields like tort, contract, and crime. Foreseeability has survived and flourished, the Article proposes, not because it carries determinate …

Third-Party Releases Under The Bankruptcy Code After Purdue Pharma, Jeanne L. Schroeder, David G. Carlson

Articles

The biggest bankruptcy case ever (as measured by unsecured claims against a debtor-in-possession) is In re Purdue Pharma, LLC. The bankruptcy court affirmed a plan discharging the Sackler family (equity owners and often officers of Purdue) of all “derivative” claims that belonged to the debtor-in-possession. The settlement was bought for a substantial sum payable over time by the Sacklers. A debtor-in-possession is the sole owner of a derivative claim and has the power to bind all the creditors to a settlement. Under the Bankruptcy Code, a plan discharging derivative claims is confirmable. In fact, as we will, show, a great …

Blockchain, The Superhero That The Healthcare Industry Needs, Victor Wang

Cardozo Arts & Entertainment Law Journal

The note argues that blockchain technology holds significant potential for transforming the healthcare industry by enhancing data security and efficiency. However, its integration faces legal challenges due to conflicts with existing healthcare laws, particularly the Health Insurance Portability and Accountability Act (HIPAA) and the HITECH Act. The note contends that blockchain's decentralized and immutable nature violates key HIPAA requirements, such as data disposal and accountability standards. It advocates for updating these laws to accommodate blockchain technology and ensure compliance, emphasizing the need for legal frameworks to evolve alongside technological advancements.

Net Positive: Imposing A Duty To Warn On Baseball Stadium Operators, Eric Rothman

Cardozo Arts & Entertainment Law Journal

The note argues that the Baseball Rule, which shields stadium operators from liability for foul ball injuries if they provide minimal protections, is outdated and inadequate given modern conditions. It proposes modifying the rule to include a duty to warn spectators of each foul ball as it is hit, drawing on Japan's successful implementation of a real-time warning system. This approach balances spectator safety with the preservation of baseball's unique fan experience.

Thaler V. Vidal: Artificial Intelligence—Can The Invented Become The Inventor?, Michelle Lavrichenko

Cardozo Law Review

No abstract provided.

Amicus Curiae Brief Of Professors Anthony J. Sebok And John C. P. Goldberg In Support Of Appellee The Devereux Foundation, Inc., Anthony J. Sebok

Amicus Briefs

Amici Anthony J. Sebok and John C. P. Goldberg are law professors with a particular focus in the field of tort law and damages. As scholars in this field, Amici recognize that the issues raised in this case are of tremendous importance to the history, theory, and development of tort law in the United States. The distinction between compensatory damages and punitive damages has long been recognized in both U.S. and Georgia law. Amici have a distinct interest in this Court reaching a correct decision with the benefit of complete and accurate historical information regarding the awarding of punitive damages …

Just Strict Liability, Cristina Carmody Tilley

Cardozo Law Review

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault—namely, the delegation …