Torts Commons^™

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 …

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, …

Tiktok On The Clock: It Is Time To Hold Social Media Platforms Responsible For The Dangerous Content They Push To Children, Angelina Rego

The Journal of Business, Entrepreneurship & the Law

This article examines the unresolved issue of social media companies endangering children through their targeted algorithms in a world where Section 230 protects them from any consequences. Part II will provide background on harmful content, like viral challenges, plaguing social media and endangering children. In addition, Part II will present an overview of Section 230’s immunity and its very limited exceptions. Next, Part III will analyze the legislative intent behind Section 230 and its relation to the First Amendment, highlighting that protecting children aligns with the act’s original purpose. Then, Part IV will discuss the few alternative workarounds available to …

A Quarter Century After The Products Liability Restatement: Reflections, Aaron D. Twerski

Brooklyn Law Review

A quarter century has passed since the adoption by the American Law Institute of the Products Liability Restatement. It is time to reflect on whether it has influenced the courts. At the time of its adoption there was considerable controversy with regard to several sections. Some sections were not controversial. There was little disagreement that a plaintiff may draw a res ipsa like inference of product defect. Nor was there disagreement that if a product was in violation of statute that the product was defective per se. Two sections were highly controversial. The Restatement held that a product could not …

The Opioid Litigation’S Challenge For Tort Theory, Alexander B. Lemann

Brooklyn Law Review

Tort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, public plaintiffs, including city, county, and tribal governments, then filed their own suits, principally on public nuisance theories. These cases were much …

Harms, Relationships, And The Contours Of Liability For Emotional Distress, Steven Schaus

Articles

In Reasonableness and Risk, Greg Keating argues that the law of torts is “preoccupied” with harm—with safeguarding conditions of effective agency. In this comment, I ask whether Keating’s picture can make sense of the tort claims, like loss of consortium, that provide some measure of protection to relationships—and to marriage-like relationships, in particular. It would be awful if my life partner were seriously injured or killed—a serious setback to my interests—a harm by almost any measure. But in what sense would it impair my agency, as Keating’s account of harm seems to require? I explain the force of the question …

When Poison Is On The Menu: Proposing The Adoption Of Ireland’S Stricter Allergen Regulations In America’S Food Establishments, Katherine Fitzgerald

Journal of Law and Policy

In the modern era, a growing number of children and adults have been diagnosed with deadly food allergies. For the approximately 33 million Americans who have at least one food allergy, restaurants, aside from the home, are the most likely place where deadly reactions could occur. In order to adapt to this expanding and sensitive population, the federal government should pass legislation that protects these citizens from suffering a preventable, untimely death. Luckily, the legislators of the European Union, and specifically Ireland, have already put food labeling legislation in place that serves to protect those with food allergies. This Irish …

Unveiling The Underbelly Of Artificial Intelligence: The Inadequacies Of The Legal System With Regard To Victims Of Nonconsensual Sexual Deepfakes, Zilana Lee

Journal of Law and Policy

Artificial intelligence-powered deepfake technology has ushered a new era of digital sexual abuse, allowing for the seamless fabrication of explicit images that violate bodily autonomy with alarming realism. With little more than a photograph scraped from social media, individuals can use AI tools to fabricate hyper-realistic nude images and pornographic videos of people without their consent. These nonconsensual sexual deepfakes are rapidly spreading online, often going viral before victims are even aware of their existence. The technology can affect anyone, but women and girls remain disproportionately targeted. Recent incidents involving minors highlight both the reach and severity of this harm. …

Confronting The Duty To Capitalize In Veil-Piercing, Douglas C. Michael

University of Cincinnati Law Review

In corporate law, the doctrine of “piercing the corporate veil” allows courts to hold shareholders personally liable for corporate obligations. The doctrine—which now also applies to entities other than corporations—has been widely criticized as imprecise and unworkable. I respond to that criticism in the area of veil-piercing law which remains most intractable—the case of the tort victim who remains unsatisfied after exhausting corporate assets. Although most commentators have eschewed talk of any duty owed by the business owner to vest the business with sufficient assets, I argue that courts and legislatures should recognize—confront—such a duty. I look to negligence law …

The Coast Guard: Always Ready, Sometimes Careful, Edward D. Leonard Iii

Maine Law Review

The government presently is liable for the negligent conduct of the Coast Guard. Why and how such liability arises is the subject of this comment. In considering this subject three central questions are presented: First, whether the various acts abrogating the sovereign immunity of the federal government have been correctly applied to the Coast Guard; second, assuming that sovereign immunity has been waived, the extent of the duty owed by the Coast Guard to persons in distress; and third, after a finding of liability, the effect of the statutory extension of the admiralty doctrine of limitation of liability upon damage …

Proof Of Defect In A Strict Products Liability Case, Robert F. Hanson

Maine Law Review

The realization that negligence doctrines do not provide an adequate remedy for consumers injured by defective products has led many courts to adopt theories of strict liability. Justification for the strict liability doctrine rests on the judicial belief that the law should provide maximum protection for the health and safety of all consumers, and that the manufacturer is "conditionally at fault" if he does not compensate consumers injured by his defective products. Manufacturers are not held liable for all product-related harm to consumers. To recover the plaintiff must plead and prove that the product which caused the harm was defective …

Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden

Maine Law Review

During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …

Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka

Maine Law Review

Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …

Wallace V. Coca-Cola Bottling Plants, Inc.: Defective Products, Expanded Liability, And The Demise Of The Impact Rule, Robert A. Whidden

Maine Law Review

During the last decade there has been a rapid change in the theories of recovery in cases involving defective products. A majority of jurisdictions has adopted strict products liability as a tort. Others still employ implied warranty, a device, apparently tort, borrowed from contract law. A minority still holds that a plaintiff must prove his claim in negligence. In a recent decision, Wallace v. Coca-Cola Bottling Plants, Inc., the Maine Supreme Judicial Court addressed the question of the extent of a manufacturer's liability for a defective product and the nature of the proof necessary to show a compensable injury. This …

Beaulieu V. Beaulieu: An Obituary For Lex Loci And An Approach To Interest Analysis, David C. Shonka

Maine Law Review

Clifford Beaulieu, a guest in his father's automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable …

Comparative Negligence And Comparative Contribution In Maine: The Need For Guidelines, Maine Law Review

Maine Law Review

In the recent case of Packard v. Whitten, Maine became the second state to adopt the doctrine of comparative contribution among joint tortfeasors. The decision stressed the point that comparative contribution was merely a logical outgrowth of Maine's Comparative Negligence Statute and that, in particular, the 1969 amendment to that law "would appear to have little purpose except to lay the basis for a comparative contribution." The court concluded that the implementation of this new doctrine would pose no major problems: "More than five years' experience in apportioning causal fault under our Comparative Negligence Law convinces us that this change …

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

The Role Of The Maine Law Court In Abrogating The Common Law Doctrines Of Governmental And Charitable Immunity From Tort Liability, Maine Law Review

Maine Law Review

During the last decade the Maine Law Court refused to overrule two common law doctrines which effectively insulated certain tortfeasors from liability for their negligent conduct. The purpose of this comment is to determine if the public policy issues embodied in the immunity rules and the reliance interests attributed to those rules by the Law Court justified the radical departure from the court's traditional role of deciding cases properly before it.

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …