Torts Commons^™

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Locking Down 'Reasonable' Cybersecurity Duty, Charlotte A. Tschider

Faculty Publications & Other Works

Following a data breach or other cyberattack, the concept of “reasonable” duty, broadly construed, is essential to a plaintiff’s potential causes of action, such as negligence, negligence per se, breach of contract, breach of fiduciary duty, and any number of statutory claims. The impact of an organization’s discretionary choices, such as whether to take specific security steps for a system, may result in potential risk to an individual, another organization, or the organization itself. Although organizations regularly engage in cybersecurity risk analysis, they may not understand what practices will be considered reasonable in a court of law and are therefore …

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

Making Privacy Injuries Concrete, Peter Ormerod

Washington and Lee Law Review

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others …

Will Products Liability Litigation Help Protect Iot Users From Cyber-Physical Attacks?, J Royce Fichtner, Troy J. Strader

Journal of International Technology and Information Management

While there is an identifiable trend towards protecting consumers from data breaches and data misuses related to IoT devices through new legislation, new regulations, government enforcement actions, and private lawsuits, there has been little progress towards creating similar legally enforceable standards of care for “cyber-physical device security.” This article explores this underdeveloped area of academic inquiry into cyber-physical device security within the context of product liability litigation in the United States. The two questions addressed in this article are: (1) Have there been any successful products liability court decisions in the United States that have held IoT manufacturers liable for …

Laprocina V. Lourie, 250 A.3d 1281 (R.I. 2021), Jeffrey Prystowsky

Roger Williams University Law Review

No abstract provided.

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

Taxation Of Tort Damages, Patricia A. Cain

Oklahoma Law Review

No abstract provided.

Antibody Claims And The Evolution Of The Written Description/Enablement Requirement, S Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Institutional Choice For Software Safety Standards, Bryan H. Choi

Publications

The pursuit of software safety standards has stalled. In response, commentators and policymakers have looked increasingly to federal agencies to deliver new hope. Some place their faith in existing agencies while others propose a new super agency to oversee software-specific issues. This turn reflects both optimism in the agency model as well as pessimism in other institutions such as the judiciary or private markets.

This Essay argues that the agency model is not a silver bullet. Applying a comparative institutional choice lens, this Essay explains that the characteristic strengths of the agency model—expertise, uniformity, and efficiency—offer less advantage than one …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

Restating The "F" Word: The Cursing Cheerleader, The First Amendment, And Proximate Cause, Don Corbett

University of San Francisco Law Review

No abstract provided.

Legal Fiction: Reading Lolita As A Sentencing Memorandum, Christina Frohock

Articles

No abstract provided.

Applying Products Liability Law To Facebook’S Platform And Algorithms: Addiction, Radicalization, And Real-World Harm, Grant W. Shea

University of Richmond Law Review

Facebook has become central to the lives of millions of Americans. As of 2021, 69% of U.S. adults use Facebook. Among those U.S. adults who use Facebook, roughly 70% visit Facebook at least once a day. Moreover, as of 2020, 36% of U.S. adults receive their news through Facebook. That means roughly 60 million U.S. adults receive their news through Facebook each day. Facebook’s impact on American society cannot be overstated when viewed through such a lens. Thus, it is important to ensure Facebook responsibly designs its products: its platform and its algorithms.

Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns

Seattle University Law Review

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than …

Replies To Commentators, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in …

Nominal Damages As Vindication, Sadie Blanchard

Journal Articles

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages …

Legislating Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

The Criminal Legal System Doesn’T Care About Your Mental Illness, Fredrick E. Vars

Cardozo Law Review de•novo

Why would a beloved small-town doctor with no history of violence suddenly strangle his father to death? The Other Dr. Gilmer is a gripping account of the search for an answer to this question. It turns out the doctor has a rare neurological disorder that likely caused the killing. If only the diagnosis had come before trial, the author believes, the doctor would not have been convicted of first-degree murder and sentenced to life without parole. That belief is appealing, but naïve. Jails and prisons are full of people with mental illness. Misdiagnosis is not the reason. A close examination …

Sequencing In Damages, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer …

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

The Unidentified Wrongdoer, Ronen Perry

Georgia Law Review

This Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Righting A Reproductive Wrong: A Statutory Tort Solution To Misrepresentation By Reproductive Tissue Providers, Yaniv Heled, Hillel Y. Levin, Timothy D. Lytton, Liza Vertinsky

Scholarly Works

Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring …

Airport Noise As Public Bads: Comparative Remarks On Legal Challenges In Resolving The Neighbor Conflict Between The Airport And Landowners, Magdalena Habdas

Journal of Air Law and Commerce

Incompatible uses of land create neighbor conflicts connected with the notions of civil law immissions (non-trespassory invasions) or common law nuisance. These traditional instruments of resolving the neighbor conflict have their limitations when pollution (such as noise pollution produced by aviation) interferes with the use and enjoyment of land that affects numerous landowners. Lawmakers seek to resolve the neighbor conflict with public intervention in such circumstances. Instead of relying on the market, the state allocates entitlements, indicates how parties must behave, and prescribes the conditions under which lawmakers should conclude an agreement.

Interestingly, although the nuisance caused by airport noise …

Anti-Subordination Torts, Scott Skinner-Thompson

Publications

No abstract provided.