Torts Commons^™

Guns In The Private Square, Cody Jacobs

Faculty Scholarship

The regulation of guns has been one of the most hotly debated public policy issues in the United States throughout the country’s history. But, up until recently, it has always been just that — a debate about public policy. Two recent developments have changed the landscape and moved the debate about publicly carrying firearms from the realm of public policy, to the realm of private decision-making and private law. First, laws related to publicly carrying firearms have been dramatically loosened throughout the United States to the point that, in the vast majority of states, anyone who is legally allowed to …

Is Barrios The Death Knell Of Bosh Claims? The Sovereign Immunity Battle Between The Oklahoma Supreme Court And Legislature Over Constitutional Torts, Hayley Stillwell

Oklahoma Law Review

No abstract provided.

The Injustice Of New York’S Notice Of Claim Limitations In Medical Malpractice Actions, Jessica Simon

NYLS Law Review

No abstract provided.

Grotheer V. Escape Adventures, Inc., Paisley Piasecki

NYLS Law Review

No abstract provided.

The Law Against Family Separation, Carrie F. Cordero, Heidi Li Feldman, Chimène Keitner

Georgetown Law Faculty Publications and Other Works

This Article offers the first comprehensive assessment of how domestic and international law limits the U.S. government’s ability to separate foreign children from the adults accompanying them when they seek to enter the United States. As early as March 6, 2017, then-Secretary of Homeland Security John Kelly told CNN’s Wolf Blitzer that he was considering separating families at the border as a deterrent to illegal immigration as part of a “zero tolerance” policy whereby the Trump administration intended the strictest enforcement of immigration law against those migrants coming to the U.S. southern border . Kelly did not say upon what …

Is Barrios The Death Knell Of Bosh Claims? The Sovereign Immunity Battle Between The Oklahoma Supreme Court And Legislature Over Constitutional Torts, Hayley Stillwell

Faculty Articles

The State of Oklahoma has explicitly adopted sovereign immunity for a broad array of tort claims, including constitutional torts—legal wrongs by government actors in violation of duties imposed by the Oklahoma Constitution. In the years before and after this explicit invocation of sovereign immunity for constitutional torts, however, the question in Oklahoma was whether the Oklahoma Legislature had the authority to do this. Even though the Oklahoma Legislature enacted a statute that invoked sovereign immunity as to certain torts, utilizing a seemingly all-encompassing definition of “tort,” the Oklahoma Supreme Court nevertheless found that private rights of action—commonly referred to as …

Networks Of Empathy, Thomas E. Kadri

Articles

Digital abuse is on the rise. People increasingly use technology to perpetrate and exacerbate abusive conduct like stalking and harassment, manipulating digital tools to control and harm their victims. By some accounts, 95% of domestic-abuse cases involve technology, while a sizeable chunk of the U.S. population now admits to having suffered or perpetrated serious abuse online. To make matters worse, people often trivialize digital abuse or underestimate its prevalence. Even among those who do appreciate its severity, there remains ample disagreement about how to address it.

Although law can be a powerful tool to regulate digital abuse, legal responses are …

Transfixed In The Camera's Gaze: Foster V. Svenson And The Battle Of Privacy And Modern Art, Michael Goodyear

Articles & Chapters

The battle between First Amendment expression and privacy interests in twenty-first century America is in full force. In Foster v. Svenson, a photographer used a high-powered camera to take snapshots of his neighbors. The New York court ruled that it was art and therefore immune from New York’s privacy statute. Constrained by New York’s ineffective privacy statute, the court’s ruling included a cry for the New York legislature to act.

Privacy has become an increasingly powerful right in American law, especially with the growth of technology. Yet the problem with Foster and the New York statute is that the sole …

How A Good Idea Became A Bad Idea: Universities And The Use Of Non-Disclosure Agreements In Terminations For Sexual Misconduct, Julie Macfarlane

Cardozo Journal of Conflict Resolution

One of the challenges that face every third-party intervenor in a conflict is what the parties shall agree about the public nature of an agreed outcome. In private dispute resolution, in contrast to adjudication by courts, there is neither a requirement nor (with a few exceptions) a legal compulsion to reveal those outcomes, if one or more parties prefer to keep the matter private.

New York’S Attempts To Regulate Airbnb (And Other Home-Sharing Platforms) Have Hit A Roadblock And, In The Process, Have Inadvertently Hurt Landlords: How Alternate Dispute Resolution Can Come To The Rescue, Charlene Soleimani

Cardozo Journal of Conflict Resolution

In light of the foregoing, it is easy to see that the status quo is a chaotic quagmire that offers neither a long-term nor effective solution to the challenges raised by the advent of Airbnb and other home-sharing platforms. The intent of this Note is to suggest a realistic pathway where the legitimate rights, needs, and interests of the City, Landlords, Airbnb, apartment owners, and hotels are considered and given appropriate weight when factoring in the overall solution. As described in detail in Part IV infra, it is likely, if not highly likely, that this can be accomplished by having …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Res Ipsa Loquitur: Reducing Confusion Of Creating Bias?, John E. Lopatka, Jeffrey Kahn

Faculty Scholarship

The so-called doctrine of res ipsa loquitur has been a mystery since its birth more than a century ago. This Article helps solve the mystery. In practical effect, res ipsa loquirtur, though usually thought of as a tort doctrine, functions as a rule of trial practice that allows jurors to rely on circumstantial evidence surrounding an accident to find the defendant liable. Standard jury instructions in negligence cases, however, fail to inform jurors that they are permitted to rely upon circumstantial evidence in reaching a verdict. Why, then, is another, more specific circumstantial evidence charge necessary or desirable?

We …

These Violent Delights Have Violent Ends: When Livestreaming Turns Deadly, Who Takes Responsibility?, Joseph Palumbo

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Acts Of Meaning, Resource Diagrams, And Essential Learning Behaviors: The Design Evolution Of Lost & Found, Owen Gottlieb, Ian Schreiber

Articles

Lost & Found is a tabletop-to-mobile game series designed for teaching medieval religious legal systems. The long-term goals of the project are to change the discourse around religious laws, such as foregrounding the prosocial aspects of religious law such as collaboration, cooperation, and communal sustainability. This design case focuses on the evolution of the design of the mechanics and core systems in the first two tabletop games in the series, informed by over three and a half years’ worth of design notes, playable prototypes, outside design consultations, internal design reviews, playtests, and interviews.

Covid-19 Business Interruption Insurance Losses: The Cases For And Against Coverage, Christopher French

Faculty Scholarship

The financial consequences of the government-ordered shutdowns of businesses across America to mitigate the COVID-19 health crisis are enormous. Estimates indicate that small businesses have lost $255 to $431 billion per month and more than 44 million workers have been laid off. When businesses have requested reimbursement of their business interruption losses from their insurers under business interruption policies, their insurers have denied the claims. The insurance industry also has announced that business interruption policies do not cover pandemic losses, so they intend to fight COVID-19 claims “tooth and nail.” More than 450 lawsuits throughout the country already have been …

Hernandez, Bivens, And The Supreme Court’S Expanding Theory Of Judicial Abdication, William J. Aceves

Michigan Law Review Online

This Essay examines the Hernandez decision and critiques the Court’s expanding theory of judicial abdication, an approach with profound implications for civil rights and the future of the judiciary. While Hernandezinvolved a cross-border shooting, the Court’s reasoning extends to all facets of civil litigation. Accordingly, this Essay proposes a new theory of judicial engagement that would empower federal courts to grant relief for constitutional claims against federal officials. It is a theory founded in extant constitutional jurisprudence that the Court has used for over a century to apply the Bill of Rights to state and local governments—an approach that …

The Specific Consumer Expectations Test For Product Defects, W. Kip Viscusi, Clayton J. Masterman

Vanderbilt Law School Faculty Publications

The consumer expectations test in products liability law holds firms liable for producing goods that are more dangerous than the reasonable consumer would anticipate. But judicial experience in the majority of states that have utilized the consumer expectations test demonstrates that it is ambiguous and impossible to apply predictably. The test is ill-suited for regulating complex products or markets with heterogeneous consumers; moreover, the test requires courts to expend significant resources to identify consumers' ex ante beliefs about product risks, even when consumers lacked tangible beliefs about products at the time of purchase. The other major test that courts apply …

Accountability, Eugenics, And Reproductive Justice, Susan Frelich Appleton

Scholarship@WashULaw

This analysis contributes to an online symposium on Dov Fox’s book BIRTH RIGHTS AND WRONGS: HOW MEDICINE AND TECHNOLOGY ARE CHANGING REPRODUCTION AND THE LAW. Using eugenics and reproductive justice as points of departure, this review highlights both strengths and weaknesses in Fox’s approach.

Damages For Privileged Harms, Stephen Yelderman

Journal Articles

The law often permits substantial harms without liability. Once liability is triggered, compensatory damages require a defendant to pay for the harm caused by his wrongful conduct. But there is significant theoretical and doctrinal ambiguity in how compensatory damages should account for the harm that the defendant could have caused without incurring liability in the first place. These harms are “privileged,” in the sense that the defendant would have been free to impose them in a counterfactual universe in which he complied with the substantive law. Having transgressed that law, he is now responsible for damages, but the question is …

Rule By Data: The End Of Markets?, Katharina Pistor

Faculty Scholarship

This Article explores data as a source and, in their processed variant, as a means of governance that will likely replace both markets and the law. Discussing data not as an object of transactions or an object of governance, but as a tool for governing others on a scale that rivals that of nation states with their law, seems a fitting topic for a special issue that is devoted to the legal construction of markets. Here, I argue that while it may well be the case that law constitutes markets, markets are not the only way in which economic relations …

Ordinary Tort Litigation In China: Law Versus Practical Justice?, Benjamin L. Liebman

Faculty Scholarship

This essay examines the roles courts play in tort litigation in China, in particular in litigation resulting from death and injury on China’s roads. At first glance traffic accident litigation in China appears to be an area in which courts play minor roles. The police, not courts, are the primary fact-finders. China’s mandatory automobile insurance system has clear guidelines for compensation levels and imposes nearly strict liability in most traffic accident cases. Courts’ roles are, at least in law, largely relegated to calculating damages. Chinese law provides schedules for assessing damages based on average local income levels, and thus outcomes …

People V. Robots: A Roadmap For Enforcing California's New Online Bot Disclosure Act, Barry Stricke

Vanderbilt Journal of Entertainment & Technology Law

Bots are software applications that complete tasks automatically. A bot's communication is disembodied, so humans can mistake it for a real person, and their misbelief can be exploited by the bot owner to deploy malware or phish personal data. Bots also pose as consumers posting online product reviews or spread (often fake) news, and a bot owner can coordinate multiple social-network accounts to trick a network's "trending" algorithms, boosting the visibility of specific content, sowing and exacerbating controversy, or fabricating an impression of mass individual consensus. California's 2019 Bolstering Online Transparency Act (the "CA Bot Act') imposes conspicuous disclosure requirements …

Knowing How To Know: Secondary Liability For Speech In Copyright Law, Laura A. Heymann

Faculty Publications

Contributory copyright infringement has long been based on whether the defendant, "with knowledge of the infringing activity," induced, caused, or materially contributed to another's infringing conduct. But few court opinions or scholarly articles have given due consideration to what it means to "know" of someone else's infringing conduct, particularly when the unlawfulness at issue cannot truly exist until a legal judgment occurs. How can one "know," in other words, that a court or jury will deem a particular use infringement rather than de minimis or fair use? At best, contributory defendants engage in a predictive exercise--in some cases, a more …

Identity Manipulation: Responding To Advances In Artificial Intelligence And Robotics, Suzie Dunn

Articles, Book Chapters, & Popular Press

Advances in artificial intelligence (AI) and robotics technologies have destabilized our ability to control our identity. Today, it is increasingly accessible for the average person to appropriate the voice, image, and body of another individual through the use of technology. Deepfake videos swap new faces into existing videos, facial re-enactment allows for the face of one person to be superimposed on the face of someone else in a real time video, artificial speech synthesis can clone another person’s voice, and 3D printing and modern robotics can reproduce life-size copies of living people. These are all examples of the ways technology …

Jesner V. Arab Bank, Plc: Limiting The Liability Of Foreign Corporations By Curbing The Breadth Of The Alien Tort Statute, Sudipta Das

Journal of Business & Technology Law

No abstract provided.

Civil Statutes Of Limitation For Child Sexual Abuse And Domestic Minor Sex Trafficking, Emma Hetherington, Melina D. Lewis, Brian Atkinson, Brittany Blanchard, Kevin Tyler Dysart, Chase Lyndale, Devin Mashman, Charles Lawson Turner

Scholarly Works

The Wilbanks Child Endangerment and Sexual Exploitation (CEASE) Clinic is a teaching and research clinic at the University of Georgia School of Law. The clinic represents survivors of childhood sexual abuse and exploitation in civil and juvenile dependency proceedings. Since opening its doors in 2016, CEASE has assisted over 100 survivors in the state of Georgia through legal representation, legal advice, and/or referrals. Law and masters of social work students work in the clinic and participate in a seminar covering best practices in representing survivors, relevant laws and policies, and practical legal and social work skills. Law students represent survivors …

Judicial Adjuncts In Multidistrict Litigation, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

Peeking under the tent of our nation's largest and often most impactful cases reveals that judges often act like ringmasters: They delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, however, contend that delegating judicial power especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs. By constructing an original dataset of ninety-two multidistrict products liability proceedings centralized over fourteen years, we introduce …

Software As A Profession, Bryan H. Choi

Publications

No abstract provided.

Foreword: State Enforcement In An Interstate World, Margaret H. Lemos

Faculty Scholarship

“State Enforcement in an Interstate World” is an important topic—fully deserving of all the attention it has received. Past commentators on this topic have generally treated the federal government as a unitary entity. Building on prior work on the subject, this Article explores the polycentric nature of federal regulatory authority and shows how cooperation and rivalry have long been dominant realities of the modern administrative state. The Article discusses how these dynamics complicate analysis of state enforcement in an interstate world and identifies strategies for reducing the frequency and magnitude of the seemingly inevitable conflicts.

Protecting Local News Outlets From Fatal Legal Expenses, Nicole J. Ligon

Faculty Scholarship

As lawsuits targeting the press continue to rise in response to today’s political climate, local news outlets are more likely to find themselves facing unexpected legal expenses. Although the national news media can generally weather the costs of libel lawsuits and subpoena requests, smaller news outlets have gone bankrupt or barely escaped such a fate while paying off legal fees, even when these outlets have ultimately been successful in their legal battles. Because local news outlets serve a critical role in underserved communities and are powerful agents of positive social change, they ought to be protected against fatal legal expenses. …