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 …

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 …

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 …

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

Cardozo Law Review

No abstract provided.

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 …

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

Cardozo Law Review

No abstract provided.

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 …

Redefining Risk: Judicially Heightened Risk Standards And Hiv-Specific Criminal Laws, Bryan Olert

Cardozo Law Review

No abstract provided.

Reparations For A Public Nuisance? The Effort To Compensate Survivors, Victims, And Descendants Of The Tulsa Race Massacre One Hundred Years Later, Adam Coretz

Cardozo Law Review

No abstract provided.

Beyond The Grave: A Fiduciary’S Access To A Decedent’S Digital Assets, Isabelle N. Sehati

Cardozo Law Review

No abstract provided.

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

Suffering Uncompounded: Civilizing Healthcare Standards For Gender Dysphoric Prisoners, Julian S. Cohen

Cardozo Law Review

No abstract provided.

Between A Rock And A Hard Place: The Implications Of St. Bernard Parish Government V. United States On Flood Takings, Mariel Talmage

Cardozo Law Review

No abstract provided.

Defining Necessary Deadly Force For Police: A Framework For Interpreting California’S A.B. 392, Alison Goldman

Cardozo Law Review

No abstract provided.

Deeply Fake, Deeply Disturbing, Deeply Constitutional: Why The First Amendment Likely Protects The Creation Of Pornographic Deepfakes, Bradley Waldstreicher

Cardozo Law Review

No abstract provided.

Is The U.S. Government Violating The Safe Conducts Of Noncitizens? How A Turn To Strict Originalism Could Revitalize The Alien Tort Statute, Gabe Cahn

Cardozo Law Review

No abstract provided.

Oklahoma V. Purdue Pharma: Public Nuisance In Your Medicine Cabinet, Justin Kaufman

Cardozo Law Review

No abstract provided.

Money For Justice: Plaintiffs' Lawyers And Social Justice Tort Litigation, Gilat J. Bachar

Cardozo Law Review

Tort lawsuits brought in response to social injustice occasionally generate incentives for entrepreneurial plaintiffs' lawyers to get involved in the litigation. What ethical responsibilities do such lawyers navigate in this space? And to what extent are they interested in, and well-positioned to produce, social change? The Article addresses these questions using a previously uncharted case study on civil actions for damages filed by Palestinians against the Israeli government. Through fifty-five in-depth, semi structured interviews with the various types of lawyers involved in the litigation, alongside quantitative analysis of an original dataset of 300 judicial opinions, the Article reveals how fee-for-service …

Claim Preclusion And The Problem Of Fictional Consent, Lindsey D. Simon

Cardozo Law Review

No abstract provided.

The Right Of Publicity As Market Regulator In The Age Of Social Media, Barbara Bruni

Cardozo Law Review

No abstract provided.

Contract's Revenge: The Waiver Society And The Death Of Tort, Ryan Martins, Shannon Price, John Fabian Witt

Cardozo Law Review

No abstract provided.

Supervisory Liability And Ashcroft V. Iqbal, Alexander A. Reinert

Cardozo Law Review

No abstract provided.

Modern Waste Law, Bankruptcy, And Residential Mortgages, Jill M. Fraley

Cardozo Law Review

Around the time of the subprime mortgage collapse, lenders began in earnest to sue borrowers by adapting the traditional law of waste. Today, these claims continue to rise in frequency and to expand to more jurisdictions. Lender waste claims provide a "work around" for state mortgage laws that prohibit personal deficiency judgments after foreclosure and are potentially non-dischargeable in bankruptcy.

While a recent wave of scholarship has addressed the problems of how the bankruptcy system handles mortgages, scholars have not yet explored the use of waste actions by lenders and how waste judgments intersect with bankruptcy and foreclosure. Using new …

An Appreciation, Monroe Price

Cardozo Law Review

When I came to Cardozo in 1982, now many years ago and shortly after its founding, the question was who, as a leading voice of a vigorous and contentious faculty, could be the wise and understanding guide for a relatively young and somewhat impetuous dean, someone who would be willing to sacrifice his or her own scholarship for a bit to help navigate a significant transition and work to add to Cardozo's incipient distinctions. I fortunately turned to Arthur to be Associate Dean and ambassador to the faculty, an ambassador to many places. He could deploy his experience and instinct …

Introductory Remarks From The Festschrift Organizer, Richard Weisberg

Cardozo Law Review

On October 11, 2018, a group of scholars from around the world gathered at Cardozo to celebrate the writings of Professor Arthur Jacobson. A fair sampling of their remarks in his honor follows in this special number of the Cardozo Law Review. Thanks for the event itself and the proceedings of the 11 th of October are due Dean Melanie Leslie, Josephine Tirado, Michael Pantazakos, my research assistants Catherine Weiss and Scott Christopher, and the editors of the Law Review.

Civil Rico: An Effective Deterrent To Fraudulent Asbestos Litigation?, Lester Brickman

Cardozo Law Review

In January 2014, U.S. Bankruptcy Judge George Hodges, presiding over the asbestos-related bankruptcy of Garlock Sealing Technologies, LLC, a manufacturer of gaskets containing asbestos, issued an order estimating Garlock's liability for pending and future mesothelioma cases. Judge Hodges, after hearing evidence discovered by Garlock in a sampling of settled cases, rejected using the usual bankruptcy court recourse to the debtor's historic settlement values as a valid basis for estimating Garlock's total future liability for asbestos-related injuries. He found that Garlock's prior mesothelioma settlements were not a reliable predictor of Garlock's liability because those settlements had been infected by misrepresentations by …

The Courtroom Turned Classroom: A Model Procedure For Educating The Gatekeepers Of Expert Evidence In Complex Toxic Tort Cases, Izabelle Tully

Cardozo Law Review

This Note maintains that in order for Rule 702 and the Daubert standard to have their intended effect, judges need more guidance and structure in how they approach scientific admissibility decisions. An analysis of how courts following Daubert currently address novel science, specifically in toxic tort cases where some members of the scientific community label causation evidence as junk science, supports this argument. This Note will focus on procedures courts have used to make gatekeeping decisions. From a study of these procedures, this Note will suggest a model framework that courts should employ to tackle novel science issues in mass …