Torts Commons^™

Just Strict Liability, Cristina Carmody Tilley

Faculty Publications

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault; namely, the …

Just Strict Liability, Cristina Carmody Tilley

Cardozo Law Review

Theorists who contend that tort is designed to do justice cannot explain strict liability. The strict sector plagues these scholars because it extracts payment from defendants who have acted reasonably and are therefore considered innocent. If tort is about wronging and recourse, then strict liability makes no sense. Stymied, justice theorists have ceded the sector to economically minded counterparts who are concerned primarily with efficient market outcomes. As this theory has taken hold, some have declared strict liability “dead.” This Article offers a justice theory of the interpersonal wrong that permits liability in the absence of traditional fault—namely, the delegation …

Throwing Stones In Glass Houses: Protecting Privacy Under The Law Of Nuisance, Cheng Lim Saw, Joon Wei Aaron Yoong

Research Collection Yong Pung How School Of Law

The limits of the law of nuisance were recently tested in the controversial decisions of Fearn v Tate Gallery Board of Trustees, both before the UK High Court and UK Court of Appeal. Against the backdrop of these decisions, this article argues that the tort of private nuisance can indeed, in appropriate cases, protect against invasions of privacy caused by overlooking – all within the present framework and ambit of the action. It is also proposed that a communitarian approach be adopted in fashioning the appropriate remedy for actions founded in nuisance.

Public Trauma: Why Utah Should Waive Immunity For Mental Anguish Injuries, Adam Reed Moore

BYU Law Review

No abstract provided.

Upaya Pemerintah Terhadap Perlindungan Ekspresi Budaya Tradisional Batik Motif Parang Sebagai Warisan Budaya Dunia, Raden Zulfikar Supinarko Putra

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Batik is not just a design on a piece of cloth, more than that, batik is a soul that blends in the procession of Indonesian society. Since the baby has been carried with a batik cloth, weddings wear batik cloth until when they die they will be covered with batik cloth too usually. This fact become a consideration for UNESCO to establish Indonesian Batik as a Masterpieces of the Oral and Intangible Heritage of Humanity in the Fourth Session of The Intergovernmental Committee. This research uses a normative legal research method that is descriptive and analytical using a statutory …

Perbedaan Akad Wakalah Bil Ujrah Dan Akad Qard Terhadap Permasalahan Akad Pembelian Barang Dalam Kehidupan Sehari-Hari, Zendy Sellyfio Ardiana

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

The wakalah bil ujrah and qard contract are contracts that often cause difficulties in implementing the purchase of goods in everyday life, both in safekeeping for purchasing goods and for buying and selling in general. Where if it is wrong in its application, it can cause income in a sale and purchase to be haraam due to an error in understanding the contract used and not describing benefit as the core of maqashid al-sharia which has an important role in determining Islamic law. The purpose of this paper is to find out how the solution to the application of …

Tinjauan Yuridis Dalam Penyelesaian Pelanggaran Ham Berat Melalui Komisi Kebenaran Dan Rekonsiliasi Di Afrika Selatan Dan Indonesia, Tshana Erfandi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Abstract

Several countries are currently developing a solution to the problem by establishing a particular commission. The commission works outside the courts, parliament and executive. In Indonesia, In Indonesia. The People's Consultative Assembly set a stipulation regarding the establishment of the National Center for Truth and Reconciliation: (NCTR) in 2000. This stipulation has the intent and purpose for national unity to identify existing problems, determine the conditions that must be made in order to achieve national reconciliation and establish policy direction as a guide to carry out the consolidation of unity of a nation. Whereas in South Africa, the National …

The Patent Medium: Toward A Network Paradigm Of The Patent System, Or Cohen Sasson

Articles

The modern patent system is conceived of as an information platform; it is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on an interdisciplinary analysis of the patent system's structure and features through the lenses of communication studies, this Article suggests that it does. It demonstrates how the patent system as a …

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

Indiana Law Journal

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, …

Privity 2.0 May Be Even Better For Tort Defendants, Anita Bernstein

Faculty Scholarship

No abstract provided.

Construction Law: The English Route To Modern Construction Law, Vivian Ramsey

Arkansas Law Review

In this Article, I will look at the way that construction law has developed in the English common law world from its roots in the law of England and Wales. Whilst common law traditions are now applied to many jurisdictions, the number of jurisdictions in which English precedents are binding is now small. But, in many common law jurisdictions decisions of the English courts are still treated as “persuasive.” English decisions in the field of construction law have an extensive reach in terms of their persuasiveness. First, having a long-established court system, including a specialist court for 150 years, has …

An Analysis Of Products Liability Defenses In The Aftermath Of Hopkins., John F. Scarzafava

St. Mary's Law Journal

Abstract Forthcoming.

Tackling The Qualified Immunity Problem With State Law, Andréa Vieira, Addie C. Rolnick, Anona Su

Nevada Law Journal

No abstract provided.

Redefining Risk: Judicially Heightened Risk Standards And Hiv-Specific Criminal Laws, Bryan Olert

Cardozo Law Review

No abstract provided.

Addressing The Empty Chair: A Standard For The Sufficiency Notices Of Nonparty Fault, Mckenna Meadows

West Virginia Law Review

No abstract provided.

No More “Heads Defendants Win, Tails Plaintiffs Lose”: How The Georgia Supreme Court’S Relation Back Decision In Cannon Rebalances Pleading Power, Jordan Lipp

Mercer Law Review

Imagine your daughter dying in a high-speed police chase—when she was not even the driver that evaded police or caused the crash. You want to hold someone accountable, but you do not know who the right person is if you sue: the deputy, the sheriff in his personal capacity, the sheriff in his official capacity, the county, the sheriff’s office, the county commissioners, the insurer of the police car? You sue the wrong one, and it is too late. Now what?

Thankfully for you, Georgia has forgiving pleading standards. Relation back is a legal fiction that assumes a claim was …

It’S Time To Resolve The Circuit Split: Unconstitutional Actions By Federal Employees Should Not Fall Within The Scope Of The Discretionary Function Exception Of The Ftca, Laney Ivey

Mercer Law Review

The Federal Torts Claims Act (FTCA) is an avenue for United States citizens to sue the federal government for torts committed by government employees within the scope of their work. Congress designed the FTCA to allow citizens to overcome the doctrine of sovereign immunity, which allows citizens to recover from injuries suffered at the hands of government agents. Under the FTCA, there are exceptions where recovery is not allowed; the most prominent exception is known as the discretionary function exception, under which discretionary actions by government employees are immune from liability under the FTCA.

Creating A Civil Remedy In Georgia For Survivors Of Out-Of-State Childhood Sexual Abuse, Alexandra H. Bradley

Mercer Law Review

Sexual abuse casts long shadows and causes long-lasting effects on its survivors, particularly children. Especially tragic, most abused children are abused by an adult whom that child knows and trusts. This abuse by anyone, especially by a child’s parents or close family friend, often causes lifelong emotional damage. Survivors generally do not recognize the extent of their abuse until many years later.

This late onset or delayed discovery has made it difficult for courts to provide redress. Although technically children could sue their abuser when the abuse occurs, children generally do not know they have a cause of action, nor …

Government Discretion Advised (Even If It’S Unconstitutional): How The Eleventh Circuit Has Expanded The United States’S Immunity From Tort Suits, John Rodriquez

Mercer Law Review

Mackie Shivers, a sixty-four-year-old man, was stabbed in the eye by his mentally-ill cellmate with a pair of scissors. Although the attack left Shivers permanently blind, he received no legal remedy to compensate him for his injuries. This result is due, at least in part, to the United States Court of Appeals for the Eleventh Circuit’s decision to interpret the discretionary function exception to the Federal Torts Claim Act (FTCA) in a broader way than virtually all of its sister circuits. The holding by the Eleventh Circuit in Shivers v. United States bars FTCA claims under the exception even for …

Swimming Up The Stream Of Commerce: How Plaintiffs In Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine, Lily S. Smith

University of Richmond Law Review

The growth of e-commerce has facilitated an increasing number of products’ travel, frequently across state and international lines. This development has subsequently increased litigation between parties who are of diverse residencies. These disputes have challenged the fundamental territorial principles that established early personal jurisdiction doctrine. Moreover, unprecedented corporate expansion—both geographically and economically—has created an environment that has outgrown a doctrine focused on protecting defendants’ rights. As courts are beginning to reform their analysis in products liability litigation towards finding Amazon and others like it strictly liable for injuries caused by products sold on their sites, Amazon will have to find …

Immigration Detention And Illusory Alternatives To Habeas, Fatma Marouf

Faculty Scholarship

The Supreme Court has never directly addressed whether, or under what circumstances, a writ of habeas corpus may be used to challenge the conditions of detention, as opposed to the fact or duration of detention. Consequently, a circuit split exists on habeas jurisdiction over conditions claims. The COVID-19 pandemic brought this issue into the spotlight as detained individuals fearing infection, serious illness, and death requested release through habeas petitions around the country. One of the factors that courts considered in deciding whether to exercise habeas jurisdiction was whether alternative remedies exist, through a civil rights or tort-based action. This Article …

A Simple Model Of Torts And Moral Wrongs, Steven Schaus

Notre Dame Law Review

According to the “standard model” of torts and moral wrongs—the model implicit in leading moral theories of tort law—tort law imposes genuine duties that are distinct from, and only roughly coincide with, our preexisting moral duties. A “tort,” on this model, is a distinctive kind of wrong, the breach of a tort-generated duty. In this Article, I suggest that moral theories of tort law start with a simpler story—one that dispenses with a distinct domain of tort-generated duties. According to what I call the “simple model” of torts and moral wrongs, tort law aims to recognize and respond directly to …

Qualified Immunity, Sovereign Immunity, And Systemic Reform, Katherine Mims Crocker

Faculty Scholarship

Qualified immunity has become a central target of the movement for police reform and racial justice since George Floyd’s murder. And rightly so. Qualified immunity, which shields government officials from damages for constitutional violations even in many egregious cases, should have no place in federal law. But in critical respects, qualified immunity has become too much a focus of the conversation about constitutional-enforcement reform. The recent reappraisal offers unique opportunities to explore deeper problems and seek deeper solutions.

This Article argues that the public and policymakers should reconsider other aspects of the constitutional-tort system—especially sovereign immunity and related protections for …

Moving Unit Video Television (T/A Muvi Tv Limited) V. Francis Mwiinga Maingaila Scz Selected Judgment No. 18 Of 2019, Chanda Chungu

SAIPAR Case Review

This case dealt with an employee of Muvi TV Limited who was accused of defiling an under-age girl whom he had had offered accommodation to. He was videoed being arrested by a police officer and the news read as follows “Journalist defiled a 13-year old girl”. This news story was repeated on several subsequent news broadcasts by Muvi TV.

This story was published before any conviction was made in criminal proceedings. A medical report revealed that the girl had not been defiled and this was available before the story was released. However, despite the medical report being available, before the …

Autonomous Vehicle Regulation & Trust: The Impact Of Failures To Comply With Standards, William H. Widen, Phillip Koopman

Articles

The autonomous vehicle (AV) industry works very hard to create public trust in both AV technology and its developers. Building trust is part of a strategy to permit the industry itself to manage the testing and deployment of AV technology without regulatory interference. This article explains how industry actions to promote trust (both individually and collectively) have created concerns rather than comfort with this emerging technology. The article suggests how the industry might change its current approach to law and regulation from an adversarial posture to a more cooperative one in which a space is created for government regulation consistent …

The "Middle Ground" Of Products Liability Analysis, Patrick Shalvey

Undergraduate Theses and Capstone Projects

The area of products liability has been the subject of intense debate for the past half-century, perhaps never more strongly than the decades comprising the second half of the twentieth century. Specifically, the 1970s was the decade that introduced the judicial community to this debate. In the 1970s and a few decades prior, consumerism skyrocketed to levels never seen before in the United States and in the world. Logically, this drastic increase in consumerism came with a drastic increase in products liability lawsuits. Manufacturing companies and corporations were forced to pay damages to injured parties at levels they never came …

Reparations For A Public Nuisance? The Effort To Compensate Survivors, Victims, And Descendants Of The Tulsa Race Massacre One Hundred Years Later, Adam Coretz

Cardozo Law Review

No abstract provided.

The Deep Architecture Of American Covid-19 Tort Reform 2020-21, Anthony J. Sebok

Articles

The rapid emergence of the COVID-19 pandemic produced massive state actions to protect in public health through the exercise of the police powers by local, state and national governments. In the United States there were calls early in the crisis to exercise the state’s power over tort law: As early as April 2020, the American Tort Reform Association published a White Paper, Responding to the Coming Lawsuit Surge that called for “reasonable constraints on . . . lawsuits that pose an obstacle to the coronavirus response effort, place businesses in jeopardy, and further damage the economy.”

This article, prepared for …

Proving Racism: Gibson Bros. Inc. V. Oberlin College And The Implications On Defamation Law, Liam H. Mcmillin

University of Cincinnati Law Review

No abstract provided.

The Great Escape: Exploring Chapter 11’S Allure To Mass Tort Defendants, Natalie R. Earles

Louisiana Law Review

The article explores Chapter 11 bankruptcy proceedings as a defense strategy used by mass tort defendants to escape unfavorable litigation and proposes the U.S. Congress to revise the Bankruptcy Code to disincentivize the misuse of bankruptcy power.