Torts Commons^™

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A How-To Guide For When Your Favorite Meme Account Is Defamed: Involuntary Public Figures In Defamation, Privacy, And Intentional Infliction Of Emotional Distress Law, Elizabeth Mcmullen

Catholic University Journal of Law and Technology

The world we live in today has changed infinitely since the inception of our Constitution and early legal doctrine. Our Founding Fathers could never have predicted that we would one day live in a world where anyone living in any corner of the globe could garner millions of followers. Whether someone finds him or herself to be particularly proficient in writing Harry Potter fan fiction or to be the best creator of memes with an American Girl Doll focus, ordinary citizens could find themselves suddenly jolted out of quiet anonymity by one unexpectedly viral post. Despite years of Instagram micro-fame, …

Defamation In The Age Of Artificial Intelligence, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Rapid advancement in artificial intelligence (AI) technology threatens the defamation landscape. Defamation, a legal concept addressing false statements that harm an individual's reputation, legally regulates the responsibility of human interactions and corporate publications. AI is neither a human nor a legal entity, which many argue makes it impossible for plaintiffs to bring successful defamation claims. The role of humans and corporate publishers in creating and curating AI systems and the added role of humans republishing false AI-generated contact, however, preserve a likelihood of success for plaintiffs bringing defamation claims against AI. Unlike other technological advances, AI does little to disrupt …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

Defamation, Bankruptcy & The First Amendment, Christopher D. Hampson

UF Law Faculty Publications

In recent years, a series of high-profile defamation cases has wound up in bankruptcy court, involving such colorful characters as Rudy Giuliani, Alex Jones, and Cardi B. As demands and verdicts swell with the rise of social media in a polarized age, defamation defendants are filing bankruptcy more frequently and at earlier stages of litigation. But that doesn’t mean bankruptcy is a magic wand for waving away debt. To the contrary, much defamation debt may be nondischargeable as “willful and malicious” under section 523 of the Bankruptcy Code. Of course, consumer bankruptcy attorneys are all too familiar with bankruptcy’s discharge …

Dockray V. Roger Williams Med. Ctr., 295 A.3d 68 (R.I. 2023)., Natalie E. Deangelis

Roger Williams University Law Review

No abstract provided.

Shareholder Primacy Versus Shareholder Accountability, William W. Bratton

Seattle University Law Review

When corporations inflict injuries in the course of business, shareholders wielding environmental, social, and governance (“ESG”) principles can, and now sometimes do, intervene to correct the matter. In the emerging fact pattern, corporate social accountability expands out of its historic collectivized frame to become an internal subject matter—a corporate governance topic. As a result, shareholder accountability surfaces as a policy question for the first time. The Big Three index fund managers, BlackRock, Vanguard, and State Street, responded to the accountability question with ESG activism. In so doing, they defected against corporate legal theory’s central tenet, shareholder primacy. Shareholder primacy builds …

Verses Turned To Verdicts: Ysl Rico Case Sets A High-Watermark For The Legal Pseudo-Censorship Of Rap Music, Nabil Yousfi

Seattle University Law Review

Whichever way you spin the record, rap music and courtrooms don’t mix. On one side, rap records are well known for their unapologetic lyrical composition, often expressing a blatant disregard for legal institutions and authorities. On the other, court records reflect a Van Gogh’s ear for rap music, frequently allowing rap lyrics—but not similar lyrics from other genres—to be used as criminal evidence against the defendants who authored them. Over the last thirty years, this immiscibility has engendered a legal landscape where prosecutors wield rap lyrics as potent instruments for criminal prosecution. In such cases, color-blind courts neglect that rap …

Unjust Enrichment In Law And Equity, Jennifer Nadler

All Papers

In Moses v Macferlan, Lord Mansfield used money had and received, a common law money count, to provide relief in a case where an action’s outcome failed to align with the actor’s intention. In the First Restatement of Restitution, Warren Seavey and Austin Scott gathered together all cases, quasi-contractual and equitable, under the single principle that ‘a person who has been unjustly enriched at the expense of another is required to make restitution to the other.’ These two influential acts of fusion between common law and equity have caused a great deal of confusion in the scholarship and jurisprudence on …

Introduction To The Statement Of Claim And Ontario Judgment In The Civil Claim Brought Against The Government Of Canada For The Death By Torture Of Shidane Arone In Somalia, With Appendices, Craig Scott

All Papers

This piece is a brief note introducing two documents, the statement of claim for and the sole judgment in Abukar Arone Rage and Dahabo Omar Samow by their Litigation Guardian Abdullahi Godah Barre v. The Attorney General of Canada (unreported, 6 July 1999, Ontario Superior Court of Justice, Cunningham J). The case concerns the efforts by family of Shidane Arone to sue the Government of Canada for civil damages for the torture and then death from torture of Arone at the hands of Canadian soldiers operating in Somalia as part of a UN mission. The case remains unreported by …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, John E. Lopatka, Jeffrey H. Kahn

Faculty Scholarship

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 100th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions.

Proponents of a rule that awards should reflect taxation and …

The Unreasonableness Of The Reasonable Woman Standard: Evaluating And Reforming Sexual Harassment Jurisprudence, Richa Parikh

CMC Senior Theses

The “Reasonable Woman Standard” was first used in the 1991 case of Ellison v. Brady and has been central in shaping legal responses to sexual harassment. However, as societal norms and understandings of gender dynamics continue to evolve, as we experienced with the #MeToo movement, this “Reasonable Woman” often fails to grow with the times. I argue that this “Reasonable Woman” fails to encapsulate the complexities of sexual harassment experiences across different genders and cultural backgrounds. In this thesis, I deconstruct the historical development of the “Reasonable Woman Standard,” analyzing its roots in the “Reasonable Person Standard.” Through a combination …

Reconceiving Tort Law And The Role Of Insurance: Achieving Mutual Accountability, Grace Hong

CMC Senior Theses

Despite insurance being a deciding factor in whether liability is found in tort cases, it is not always reflected in tort theories and court opinions. In this paper, I offer a framework for reconceiving the role of insurance in tort law. To achieve this, I outline where insurance falls into instrumental and non-instrumental theories and why non-instrumental theories are more persuasive. After establishing this, I move to Goldberg and Zipursky’s civil recourse theory and delineate how similarities between the right to vote and right of action indicate parallel problems with failures to comprehend lack of access to the political process …

Decoding U.S. Tort Liability In Healthcare's Black-Box Ai Era: Lessons From The European Union, Mindy Duffourc, Sara Gerke

Faculty Scholarly Works

The rapid development of sophisticated artificial intelligence (“AI”) tools in healthcare presents new possibilities for improving medical treatment and general health. Currently, such AI tools can perform a wide range of health-related tasks, from specialized autonomous systems that diagnose diabetic retinopathy to general-use generative models like ChatGPT that answer users’ health-related questions. On the other hand, significant liability concerns arise as medical professionals and consumers increasingly turn to AI for health information. This is particularly true for black-box AI because while potentially enhancing the AI’s capability and accuracy, these systems also operate without transparency, making it difficult or even impossible …

Locating Liability For Medical Ai, W. Nicholson Price Ii, I. Glenn Cohen

Articles

When medical AI systems fail, who should be responsible, and how? We argue that various features of medical AI complicate the application of existing tort doctrines and render them ineffective at creating incentives for the safe and effective use of medical AI. In addition to complexity and opacity, the problem of contextual bias, where medical AI systems vary substantially in performance from place to place, hampers traditional doctrines. We suggest instead the application of enterprise liability to hospitals—making them broadly liable for negligent injuries occurring within the hospital system—with an important caveat: hospitals must have access to the information needed …

Humans Outside The Loop, Charlotte A. Tschider

Faculty Publications & Other Works

Artificial Intelligence (AI) is not all artificial. Despite the need for high-powered machines that can create complex algorithms and routinely improve them, humans are instrumental in every step used to create AI. From data selection, decisional design, training, testing, and tuning to managing AI’s development as it is used in the human world, humans exert agency and control over the choices and practices underlying AI products. AI is now ubiquitous: it is part of every sector of the economy and many people’s everyday lives. When AI development companies create unsafe products, however, we might be surprised to discover that very …

Juries And Tax: The Effect Of Income Taxation On Tort Damages, Jeffrey H. Kahn, John E. Lopatka

Scholarly Publications

In some shape or form, most tort damages for personal injuries have been excluded from federal income taxation since 1919. Despite this rule having celebrated its 1 0 0th birthday, the tax policy justification for the exclusion eludes consensus. Whether the policy is justified or not, the exclusion raises two other issues: should compensatory damage awards reflect non-taxability, and should juries be informed about tax treatment when determining awards? Like the disagreement over policy justifications for the exclusion, states are not in accord on their damage rule or approach to jury instructions. Proponents of a rule that awards should reflect …

Risky Speech Systems: Tort Liability For Ai-Generated Illegal Speech, Margot E. Kaminski

Publications

No abstract provided.

Ai Malpractice, Bryan H. Choi

Publications

Should AI modelers be held to a professional standard of care? Recent scholarship has argued that those who build AI systems owe special duties to the public to promote values such as safety, fairness, transparency, and accountability. Yet, there is little agreement as to what the content of those duties should be. Nor is there a framework for how conflicting views should be resolved as a matter of law.

This Article builds on prior work applying professional malpractice law to conventional software development work, and extends it to AI work. The malpractice doctrine establishes an alternate standard of care—the customary …

We Shall Overcome: The Evolution Of Quotas In The Land Of The Free And The Home Of Samba, Stella Emery Santana

Seattle University Law Review

When were voices given to the voiceless? When will education be permitted to all? When will we need to protest no more? It’s the twenty-first century, and the fight for equity in higher education remains a challenge to peoples all over the world. While students in the United States must deal with the increase in loans, in Brazil, only around 20% of youth between the ages of twenty-five and thirty-four have a higher education degree.

The primary objective of this Article is to conduct an in-depth comparative analysis of the development, implementation, and legal adjudication of educational quota systems within …

Pacific Islands And The U.S. Military: The Legal Borderlands Of The Environmental Movement, Sonia Lei

Seattle University Law Review

Climate change remains an urgent, ongoing global issue that requires critical examination of institutional polluters. This includes the world’s largest institutional consumer of petroleum: the United States military. The Department of Defense (DoD) is a massive institution with little oversight, a carbon footprint spanning the globe, a budget greater than the next ten largest nations combined, and overly generous exemptions to environmental regulations and carbon reduction targets. This Comment examines how this lack of accountability and oversight plays out in the context of three Pacific islands that have hosted U.S. military bases for decades. By considering the environmental impact of …

Adultery Provisions In Matrimonial Agreements, Elizabeth R. Carter

American University Law Review

Can a contract discourage your spouse from cheating or compensate you for a broken heart? Adultery penalties in marriage contracts seek to do exactly that. An adultery penalty is a financial penalty in a marriage contract triggered by a spouse’s infidelity. While many practitioners advise clients against adultery provisions in marriage contracts, some clients demand them. However, are adultery provisions enforceable? Should they be? This Article considers the sociolegal history of adultery and provides new insight into the enforceability and wisdom of adultery penalties. This Article also provides novel arguments that adultery provisions should not be enforced and calls upon …

Research On The Influencing Factors Of Patent Invalidation Under The Background Of Infringement Litigation, Qining Peng, Bingxiang Liu, Zhenkang Fu, Guangyu Feng, Wenyu Bei

Journal of Scientific Information Research

[Purpose/significance]Taking patent infringement as the starting point, this paper explores the influence mechanism of different factors on the tendency of patent infringement declaration, then compares and analyzes the differences in the influencing factors of invalid declaration under different infringement themes in the same field.[Method/process]Firstly, this paper uses the LDA topic model to subdivide the infringement topics in the selected emerging industry field, and understands the different infringement topics and infringement keywords of the infringement patents in this field;Secondly, the statistical correlation model is used to calculate various data indicators under different infringement classification topics and comparatively analyze the correlation between …