Torts Commons^™

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam

Brooklyn Law Review

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …

Impaired, In Pairs, Cristina Carmody Tilley

Faculty Publications

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional …

A New Private Law Of Policing, Cristina Carmody Tilley

Faculty Publications

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Extractive Welfare: Medicaid Statutory Recovery Formulas After Gallardo V. Marstiller, Elenore Wade

University of Richmond Law Review

In 2022, the Supreme Court of the United States held states may seize injured Medicaid recipients’ tort recoveries beyond the portion of those recoveries allocated for past medical expenses actually covered by Medicaid. However, the Court’s decision went beyond that distinction by validating the practice of states using one-size-fits-all “statutory recovery formulas” to seize the tort recoveries of injured Medicaid recipients. Although the Court painted the dispute as one of bland statutory interpretation, the holding enshrines the subordinated social and legal position of recipients of poor people’s programs in the United States. Although others have examined Medicaid, and other poor …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Torts And Personhood, Melissa Mortazavi

Arkansas Law Review

Perhaps more so than ever, legal personhood is contested. Part I of this Article lays out an overview of existing tort theories exposing the limitations of existing paradigms. This positions the reader to consider in Part II the core assertion of this paper: that a fundamental role of torts is to define personhood. As such, it explores the idea that a principal project that each tort case and litigant is engaged with is not truly about money, property, or even pain per se—it is about determining who is seen.

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …

The Physical-Emotional Distinction In Tort, Philip Petrov

Faculty Scholarship

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional …

Wearable Ai, Bystander Notice, And The Question Of Privacy Frictions, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

With the rapid advancement of Artificial Intelligence (“AI”) technology and the widespread availability of large language models (“LLMs”), wearable AI devices and designs for new hardware have surged like never before. While wearable AI was traditionally marketed for health and fitness purposes, many of the emerging products are multifunctional. These features can jeopardize the privacy of bystanders in addition to the consumers. Product designers are thus facing a dilemma: ensuring third-party privacy or guaranteeing convenience and a user-friendly design. This Article argues for mandating “privacy frictions” to function as both bystander notice and consent for wearable AI devices with audiovisual …

America’S “Kia Boys”: The Problem, Responses, And Recommendations, Drew Thornley

Seattle University Law Review Online

The landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the "Kia Challenge," a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the "Kia Boys" or variations thereof, orchestrate daring car heists, …

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Renewing Products Liability With Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

State Of Confusion: Underinsured Motorist Coverage In Pennsylvania And The Opportunity To Get It Right, Logan Bennett

Duquesne Law Review

Automobiles play a critical role in modern society. While many opt for alternative modes of transportation-for example public transportation, walking, and biking-the automobile remains the most popular method in America.² Despite the obvious convenience of a personal vehicle, car accidents are a foreseeable but unfortunate consequence of driving. There are an average of six million car accidents in the United States each year.³ In Pennsylvania alone, there were over 115,000 car accidents reported in 2022, with the most common vehicle type involved being passenger cars.⁴

Punitive Damages As A Deterrent To Distracted Driving: Where The Statutory Penalties Fall Short, The Supreme Court Of Pennsylvania Must Fill The Gap, Abagail Hudock

Duquesne Law Review

Punitive damages have always been one of the more controversial remedies available for tort harms.¹ While a minority of states prohibit punitive damages altogether,² the majority of jurisdictions embrace them not only as a means of punishment on those tortfeasors who commit especially heinous, callous, or irresponsible acts, but also as a deterrent to others from committing such conduct.³ They function, therefore, as a societal protection against behavior that poses a great risk to the public that criminal penalties and compensatory damage awards might not be able to prevent or attenuate on their own.

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Offshore Wind: A Comparative Of The United States And Norway

Fordham Environmental Law Review

No abstract provided.

Assessing The Human Right To Water And Sanitation In International Law And The Conflict In The Nile Basin

Fordham Environmental Law Review

Ethiopia’s construction and operation of the Grand Ethiopian

Renaissance Dam (GERD) on the Blue Nile has intensified the long-

standing water conflict involving Ethiopia, Egypt, and Sudan, and

highlights the urgent need for a new legal framework for the Nile

Basin’s governance. This article traces the history of the international

human right to water and sanitation and previous attempts to govern

water use in the Nile Basin. We argue that outdated colonial-era

treaties, which Egypt and Sudan insist on using as a baseline for

negotiations, are a significant obstacle to resolving the Nile conflict

and managing the region’s water resources …

Debts And Desertion: Bankruptcy Law And The Orphan Well Crisis

Fordham Environmental Law Review

The issue of orphan wells—unplugged and unproductive oil and

gas wells with no responsible operator—poses a significant

environmental and public health threat in the United States. The scale

of this crisis is alarming: there are over 120,000 documented orphan

wells and potentially millions more undocumented. These wells are

often significant sources of methane emissions and other toxins that

exacerbate climate change and endanger the health of surrounding

communities. This paper examines the orphan well crisis, exploring

how wells become orphaned and the environmental and health

impacts associated with them. Furthermore, it delves into how the

situation is likely to worsen …

Recourse For Defects And Deception: A Multifactor Duty Test For Online Platforms, Edward J. Janger, Aaron D. Twerski

Marquette Law Review

Amazon is the world’s largest platform for consumer retail sales. It plays a crucial role in matching buyers and sellers and consummating their transactions. It has, for the most part, escaped tort liability for harm caused by defective products sold by third-party vendors on its website. The majority of cases have held Amazon immune from suit because Amazon did not take title to the goods. It was not formally a seller despite the fact that it controls every aspect of the sale from receiving the order, (often) warehousing and shipping the goods, and collecting payment. This formal approach creates a …

The Power Of All: Tort In The Age Of Constitution, Cristina Carmody Tilley

Marquette Law Review

Life in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public—constitutional—law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort …

Public Primacy In Corporate Law, Dorothy S. Lund

Seattle University Law Review

This Article explores the malleability of agency theory by showing that it could be used to justify a “public primacy” standard for corporate law that would direct fiduciaries to promote the value of the corporation for the benefit of the public. Employing agency theory to describe the relationship between corporate management and the broader public sheds light on aspects of firm behavior, as well as the nature of state contracting with corporations. It also provides a lodestar for a possible future evolution of corporate law and governance: minimize the agency costs created by the divergence of interests between management and …

Robo-Voting: Does Delegated Proxy Voting Pose A Challenge For Shareholder Democracy?, John Matsusaka, Chong Shu

Seattle University Law Review

Robo-voting is the practice by an investment fund of mechanically voting in corporate elections according to the advice of its proxy advisor— in effect fully delegating its voting decision to its advisor. We examined over 65 million votes cast during the period 2008–2021 by 14,582 mutual funds to describe and quantify the prevalence of robo-voting. Overall, 33% of mutual funds robo-voted in 2021: 22% with ISS, 4% with Glass Lewis, and six percent with the recommendations of the issuer’s management. The fraction of funds that robo-voted increased until around 2013 and then stabilized at the current level. Despite the sizable …

The Limits Of Corporate Governance, Cathy Hwang, Emily Winston

Seattle University Law Review

What is the purpose of the corporation? For decades, the answer was clear: to put shareholders’ interests first. In many cases, this theory of shareholder primacy also became synonymous with the imperative to maximize shareholder wealth. In the world where shareholder primacy was a north star, courts, scholars, and policymakers had relatively little to fight about: most debates were minor skirmishes about exactly how to maximize shareholder wealth.

Part I of this Essay discusses the shortcomings of shareholder primacy and stakeholder governance, arguing that neither of these modes of governance provides an adequate framework for incentivizing corporations to do good. …

The Pioneers, Waves, And Random Walks Of Securities Law In The Supreme Court, Elizabeth Pollman

Seattle University Law Review

After the pioneers, waves, and random walks that have animated the history of securities laws in the U.S. Supreme Court, we might now be on the precipice of a new chapter. Pritchard and Thompson’s superb book, A History of Securities Law in the Supreme Court, illuminates with rich archival detail how the Court’s view of the securities laws and the SEC have changed over time and how individuals have influenced this history. The book provides an invaluable resource for understanding nearly a century’s worth of Supreme Court jurisprudence in the area of securities law and much needed context for …

Three Stories: A Comment On Pritchard & Thompson’S A History Of Securities Laws In The Supreme Court, Harwell Wells

Seattle University Law Review

Adam Pritchard and Robert Thompson’s A History of Securities Laws in the Supreme Court should stand for decades as the definitive work on the Federal securities laws’ career in the Supreme Court across the twentieth century.1 Like all good histories, it both tells a story and makes an argument. The story recounts how the Court dealt with the major securities laws, as well the agency charged with enforcing them, the Securities and Exchange Commission (SEC), and the rules it promulgated, from the 1930s into the twenty-first century. But the book does not just string together a series of events, “one …

On The Value Of History: A Review Of A.C. Pritchard & Robert B. Thompson’S A History Of Securities Law In The Supreme Court, Joel Seligman

Seattle University Law Review

A.C. Pritchard and Bob Thompson have written a splendid history of securities law decisions in the Supreme Court. Their book is exemplary because of its detailed use of the long unpublished papers of Supreme Court justices, including those of Harry Blackmun, William O. Douglas, Felix Frankfurter and Lewis F. Powell, primary sources which included correspondence with other Justices and law clerks as well as interviews with law clerks. The use of these primary sources recounted throughout the text and 67 pages of End Notes deepens our understanding of the intentions of the Justices and sharpens our understanding of the conflicts …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents