Torts Commons^™

Relief And Its Costs: The Need For A Congressional Response To The Aftermath Of Harrington V. Purdue Pharma, Emma Skeen

William & Mary Law Review

This Note explores the fallout of the Harrington v. Purdue Pharma decision and the uncertainty it lends to the future of bankruptcy plans and third-party releases. Specifically, it proposes potential congressional solutions that can pave a path forward for parties to seek relief for the harms they have suffered under the actions of corporations and their leaders. Part I provides background information on the use of nonconsensual third-party releases in bankruptcy cases and their controversial nature. Part II analyzes the Supreme Court’s settling of that controversy in Harrington and the bases that it relied on in doing so. Part III …

Emotionally Unstable: Addressing Emotional Distress As A Concrete Injury In Data Breach Cases Post-Transunion, Anna P. Cox

Fordham Law Review

Data breaches and data breach litigation are exponentially on the rise. Plaintiffs whose information is stolen in a data breach often claim emotional distress for fear of future harm the data breach may cause. However, plaintiffs who bring suit in federal court must show that they have suffered an injury in fact for purposes of Article III standing before a federal court will exercise jurisdiction. The U.S. Supreme Court’s decision in TransUnion LLC v. Ramirez requires that plaintiffs who seek money damages under a theory of risk of future harm show that they have suffered a present concrete injury to …

Is Your Data Good, Bad, Or Neutral?: Redefining Concreteness For Data Breach Harms, Jeeyoon Lim

Fordham Law Review

In recent years, the Supreme Court has tightened federal court standing requirements for intangible harms, including statutory harms. In TransUnion LLC v. Ramirez, the Court held that a mere statutory violation, absent a common-law analogue, is not sufficiently concrete to grant standing. The Court did not provide clear guidance as to how stringent the common-law analogue analysis must be, other than that it does not require an “exact duplicate.” Because of the ever-evolving nature of digital data, data breach victims attempting to enforce their statutory right to privacy in federal court have struggled to rely on tradition and history …

Civil Liability For Invasions Of Privacy: Whither Singapore?, Yu Han Lam

Research Collection Yong Pung How School Of Law

Intrusions upon privacy are becoming increasingly common in Singapore. Singapore has yet to establish a tort addressing this issue, although the SAL Law Reform Committee has proposed a tort of misuse of private information. Australia has also recently introduced a statutory tort of serious invasion of privacy. This article will argue for the need for a Singapore tort of intrusion upon seclusion, on top of the already proposed tort of misuse of private information, to cover more appropriately instances of intrusions upon privacy.

Dignity And Deepfakes, Michael Goodyear

Articles & Chapters

Today, we face a dangerous technosocial combination: AI-generated deepfakes and the Internet. Believable and accessible, these deepfakes have already spread sex, lies, and false advertisements across the Internet and targeted everyone from Taylor Swift to middle school students. Dissemination of deepfakes inflicts multifarious dignitary harms against their victims—especially women and LGBTQ+ persons—stripping them of control over their own identities, harming their reputations, and ostracizing them from society through shame.

Yet this is not the first time a new technology for capturing one’s likeness and a method for disseminating images threatened individuals’ dignity. In the late nineteenth century, the right of …

Torts Mismatches, Ed Cheng, Ehud Guttel

Vanderbilt Law Review

In torts, the damages required for full compensation of the victim and optimal deterrence of the injurer are normally the same. This correspondence is perfectly natural: If the injurer fully compensates the victim, then the injurer will completely internalize his externalities. Yet sometimes full compensation and optimal deterrence do not align. A well-known example is punitive damages, in which victims are purposely overcompensated to optimally deter injurers. What the literature has failed to acknowledge is that these torts mismatcheswhen full compensation of victims and optimal deterrence of injurers are incompatibleoccur elsewhere and explain controversial and unresolved doctrinal areas of torts. …

Are You The Sum Of Your Data? Appropriation Of Digital Persona As Appropriation Of Likeness, Lyrissa Barnett Lidsky

UF Law Faculty Publications

A review of Zahra Takhshid's article, Data as Likeness, 112 Geo. L. J. 1161 (2024).

Remedies For Non-Disclosure In Asset Sales: Voidance Vs. Damages, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

This paper analyzes the problems of non-disclosure in the context of an asset sale between a buyer and a seller. The seller can have important information about the asset and can opportunistically decide not to disclose that information to the buyer, and the buyer may sue the seller ex post for remedy. The buyer and the court have a choice over different types of remedy. The paper considers three different remedy regimes: (1) no liability; (2) voidance; and (3) damages. Under voidance, the buyer can rescind the transaction (return the asset and get the price back), while with damages, the …

Reimagining U.S. Tort Law For Deepfake Harms: Comparative Insights From China And Singapore, Huijuan Peng, Pey Woan Lee

Research Collection Yong Pung How School Of Law

This Article explores how U.S. tort law can respond more effectively to the distinct harms posed by deepfakes, including reputational injury, identity appropriation, and emotional distress. Traditional tort doctrines, such as defamation, the right of publicity, and intentional infliction of emotional distress (IIED), remain fragmented and ill-suited to the speed, scale, and anonymity of deepfake dissemination. Using a comparative functionalist approach, the Article analyzes how China and Singapore respond to deepfake harms through structurally divergent but functionally instructive frameworks. China’s model combines codified personality rights with intermediary obligations under a civil law regime, while Singapore adopts a hybrid approach that …

The Inevitability Of Local Environmental Law, Keith H. Hirokawa, Cinnamon Carlarne Hirokawa, Lauren A. Vanwagoner

Fordham Environmental Law Review

The United States is entering a new era of environmental law. Within the first few months of President Trump’s second term in office, the administration issued a mass of executive orders, memoranda and policy changes that seek to peel back environmental protections, in many cases, to the point of erasure. The administration shuttered entire agencies, such as USAID, dissolved the Environmental Protection Agency’s research arm, terminated life-saving programs like the National Weather Service’s translation service, cut funding to housing and public health initiatives, and eliminated diversity, equity, and inclusion programs across the country. Given the reality of these large-scale drawbacks, …

Tort Liability For Failure To Age Gate: A Promising Regulatory Response To Digital Public Health Hazards, Matthew B. Lawrence, Brett Frischmann, Avi Sholkoff

Faculty Publications

Tort liability for failure to “age gate” is a promising legal response to the public health hazards of AI, social media, sports gambling, and other digital spaces. Tort liability for failure to “age gate” hinges liability for harms to minors on an app’s failure to take reasonable steps to prevent minors from gaining access or otherwise to apply appropriate governance rules, such as privacy-protective default settings or ensuring genuine parental consent. While no one legal response is a panacea, tort liability for failure to age gate carries several distinctive advantages that make it a particularly promising option at this stage …

The Gap: Addressing The Missing Piece In HawaiʻI’S Anti-Discrimination Laws On Credit And Lending, Wendy Mun

Seattle University Law Review

This author addresses the significant gap in Hawaiʻi’s anti-discrimination laws, specifically the lack of explicit protections for LGBTQ+ individuals against credit and lending discrimination. Although federal laws like the Equal Credit Opportunity Act (ECOA) and recent interpretations by the Consumer Financial Protection Bureau (CFPB) extend some protections, they remain vulnerable to shifting federal priorities and interpretations. The author explores how other states, particularly California and Washington, have enacted robust statutory protections that clearly prohibit credit discrimination based on sexual orientation and gender identity. They argue that Hawaiʻi, despite its large LGBTQ+ population, must amend its credit protection laws to reflect …

Keynote Address: Community Over Constitution, Riddhi Mukhopadhyay

Seattle University Law Review

In this keynote address, Riddhi Mukhopadhyay challenges the veneration of the U.S. Constitution by highlighting its origins in exclusion and its continued failure to protect marginalized communities. Drawing from her experience in civil legal aid and gender justice, she argues that the Constitution was drafted to consolidate power among white, wealthy men and continues to reflect that legacy through racial, gender, and class-based inequities. While acknowledging the significance of constitutional amendments and landmark cases, Mukhopadhyay emphasizes that meaningful change has always come from community-led action, not top-down reform. Additionally, Mukhopadhyay calls on lawyers and legal advocates to center community, practice …

The Lost Child: A Critique On Transracial Adoption Rhetoric, Hallie Conyers-Tucker

Seattle University Law Review

Transracial adoption in the United States reflects a deeply rooted history of colonialism, cultural assimilation, and racial hierarchy, masked by rhetoric focused on the “best interest of the child.” The author critiques that rhetoric and traces how adoption practices and policies, both domestic and international, have evolved to reinforce systemic inequities. Through historical analysis of the forced adoption of Native American, Black, and Asian children, it reveals how the best interest standard has been wielded not to protect children but to uphold political and racial ideologies. The author argues that the prevailing adoption framework relies on child-saving and color-blind narratives …

A Global Reconstruction: Black Internationalism And The Human Rights Regime, Britta Redwood

Seattle University Law Review

Black American advocates for civil, political, and economic rights have long taken an internationalist approach and fostered connections with international organizations and transnational movements. This engagement has also been a generative force and played role in shaping international law. Beginning in the early years of the twentieth century, Black intellectuals and leaders, spearheaded by the NAACP and the UNIA, focused on human rights as a means for addressing and repairing the harms wrought by slavery, Jim Crow, and racism. From the Paris Peace Conference of 1919 through the Universal Declaration of Human Rights, the Genocide Convention, and the drafting of …

Can The Law Protect My Craft? How Gaps In Copyright Of Knitting Patterns Symbolize A Greater Struggle For Protecting Traditionally Feminine Forms Of Intellectual Property, Kysa Walzer

Seattle University Law Review

The purpose of this article is to demonstrate the application of intel-lectual property rights within the context of copyright protection of knit-ting patterns. The article will discuss the underutilization of copyright pro-tection for knitters and crafters and its larger impact upon craft and indus-try traditionally comprised of women. Part I introduces knitting patterns and a short history of copyright protections. Part II discusses the specific areas within knitting patterns and the knitting community which give rise to legal grey areas for copyright protection. Part III discusses the larger implications of copyright and intellectual property in spaces where women traditionally make …

A New Exclusionary Rule To Protect Bodily Integrity And Discourage Pretext Stops, Josephine Ross

Seattle University Law Review

The author proposes a novel state-level exclusionary rule to reduce racial profiling and protect bodily autonomy during police encounters. The current Fourth Amendment jurisprudence fails to deter pretextual stops and frisks because the exclusionary rule often turns on officer fault and "good faith," allowing racially motivated practices to go unchecked. As federal rollbacks on diversity and data collection hinder efforts to track racial bias, the author argues for a statutory evidentiary rule that automatically excludes drug evidence found during (1) traffic stops, (2) pat-downs for weapons, and (3) consent searches, regardless of an officer’s intent or the legality of the …

Navahine V. HawaiʻI Dept. Of Transportation: The Keiki Will Lead Us, Catherine Smith

Seattle University Law Review

The author analyzes the landmark case Navahine v. Hawaiʻi Department of Transportation, which culminated in the world’s first constitutional climate settlement. Catherine Smith, serving as an expert for the youth plaintiffs, situates the case within Hawaiʻi’s legal tradition of prioritizing children’s rights and intergenerational equity. She explores the evolution of children’s constitutional protections, contrasting Hawaiʻi’s progressive jurisprudence with the dominant adult-centric legal framework on the mainland. She critiques four recurring analytical missteps in U.S. courts that marginalize children’s interests and highlights Hawaiʻi’s public trust doctrine and cultural values, such as the Aloha Spirit, as models for addressing climate-related harms. …

Something Concrete: How Labor Advocates Can Best Respond To The Ambiguity Of Glacier Northwest, Ateş Serifsoy

Seattle University Law Review

The Supreme Court’s much-anticipated decision in Glacier North-west, Inc. v. International Brotherhood of Teamsters Local No. 174 (Glacier) marked a critical moment for workers’ rights under the National Labor Relations Act (NLRA) and the longstanding practice of Garmon preemption. Yet, initial fears of a significant rollback of workers’ rights, driven by sensational headlines, were met with an unexpectedly narrow Court opinion. This Comment examines Glacier’s implications for Gar-mon preemption and the right to strike. It offers the historical background of the doctrine of labor law preemption before Glacier; presents a detailed analysis of Glacier itself, including its …

Table Of Contents

Seattle University Law Review

Table of Contents

Volume 48 Masthead

Seattle University Law Review

Volume 48 Masthead

Constitutional Futurism As Pedagogy, Jeremiah Chin

Seattle University Law Review

Constitutional Law has transformed from a course on history to a discussion of current events. Cases like Students for Fair Admissions v. Harvard College, Dobbs v. Jackson Women’s Health Organization, and Loper Bright Enterprises v. Raimondo reveal that the study of constitutional law is not a static, or even linear, discussion of constitutional text and history. Law is a shifting, changing enterprise that reflects social constructions of power, authority, and identity. How do we teach, learn, and understand constitutional law that is so laden with history, riddled with theories of consistency and adherence to precedent, but ultimately subject …

The U.S. Drug Policy Hamster Wheel: A Critical Discourse Analysis Of Seattle’S New Drug Ordinance, Hallie Conyers-Tucker

Seattle University Law Review

The author critically examines Seattle’s new drug ordinance using Critical Discourse Analysis (CDA) to reveal how legislative language influences the policy's actual effect. Although the ordinance claims to prioritize diversion and community health, the use of permissive language such as “may” and “shall” grants broad discretionary power to law enforcement and undermines the stated intent. The author situates the ordinance within a broader historical context, highlighting how drug policy in the United States has consistently been shaped by racialized and stigmatizing narratives. Additionally, the author argues that meaningful reform requires reframing the discourse around substance use to support public health …

Hernandez Vs. The Home Depot, Inc. (Nrap 5), 141 Nev. Adv. Op. 23 (May 01, 2025), Julia Daileda

Nevada Supreme Court Summaries

Nevada fails to impose strict liability for a defective or dangerous product on a trademark licensor that played no role in the product’s design or manufacture.

Purdue’S Side Effects: Using Due Process To Realign Mass Tort Bankruptcies, William A. Organek

BYU Law Review

In Harrington v. Purdue Pharma, the United States Supreme Court held that victims of the opioid crisis could not be forced to release their independent claims against the Sacklers, who owned and controlled Purdue, without the victims’ consent. Such releases had become a controversial mainstay of mass tort bankruptcy filings. Yet Purdue was decided on narrow, textualist grounds, leaving as a side effect many seemingly disparate and difficult questions unanswered. This Article argues that Purdue and its open issues should be analyzed through a broader due process lens in tension with some aspects of current bankruptcy practice but consistent with …

Virtual Dignitary Torts, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

The emergence of the metaverse and spatial computing, which has enabled immersive digital interactions, raise complex legal questions. This work examines the feasibility of addressing dignitary torts-such as battery and intentional infliction of emotional distress-committed via avatars. The particular challenge for tort law is the nonphysical nature of selfrepresentations in these virtual spaces. Drawing from the historical evolutions of several dignitary torts, such as the law of battery and emotional harm, this article argues that the key in allowing for the recognition of such harms is appreciating the expansion of the protection of physical body within these torts, to the …

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 …

On Software Bugs And Legal Bugs: Product Liability In The Age Of Code, Asaf Lubin

Indiana Law Journal

Despite software’s ubiquity in modern life, its classification within product liability law remains unsettled. Is software a product, a service, a good, a component, a medium, a force, or something else altogether? Under the Restatement (Third) of Torts, a product is defined as a “tangible personal property distributed commercially for use or consumption.” But has this definition been embraced by states? And how has it been applied in the courts, since its adoption some twenty-six years ago?

Through a fifty-state survey and the canvassing of all relevant case law, this Essay reveals widespread doctrinal inconsistencies within the common law. Some …

Whose Bot Is It Anyway? Determining Liability For Ai-Generated Content, John G. Browning

Northern Illinois University Law Review

As Chief Justice John Roberts noted in his State of the Judiciary address in late December 2023, artificial intelligence has not only had a seismic effect on society and the legal profession, but it is also presenting courts with novel questions to resolve. To date, most of the legal scholarship discussing generative AI has focused on areas like the ethical dimensions of its use, copyright infringement implications, AI governance issues, and the evidentiary questions raised by the use of this technology. However, a void in the scholarship exists with respect to the question of who should be liable for AI-generated …

Tort Law Heterodoxy In China, Benjamin L. Liebman, Rachel E. Stern, Eva Wenwa Gao, Xiaohan Wu

Faculty Scholarship

Chinese courts routinely ask defendants to pay damages without evidence of negligence while relying on concepts such as fairness, substantive justice, or discretion. This chapter examines how Chinese courts arrive at decisions that feel fair or just in cases where they refer to those ideas. Analysis of a dataset of 10,000 judicial decisions in personal injury cases suggests that Chinese courts refer to these concepts when they impose liability on two types of parties: (1) participants in a shared activity and (2) those who control a physical space. By assigning legal responsibility in these cases, Chinese courts acknowledge traumatic harm, …