Torts Commons^™

Submission To The Province Of Nova Scotia On Its Review Of The Intimate Images And Cyber-Protection Act - Leaf, Suzie Dunn, Rosel Kim

Reports & Public Policy Documents

The Women’s Legal Education and Action Fund (LEAF) commends the Nova Scotia government for reviewing its Intimate Images and Cyber-protection Act (the Act) and seeking public input for this review. Nova Scotia has been, and continues to be, a leader in Canada for its role in advancing innovative laws and supports for people targeted by technology-facilitated violence (TFV), digital abuse, and the non-consensual distribution of intimate images (NCDII). As these forms of harmful behaviour evolve and become better understood, it is important to revisit this legislation to assess whether it is providing meaningful and accessible responses to such serious social …

The Unidentified Wrongdoer, Ronen Perry

Georgia Law Review

This Article addresses the untheorized and under-researched problem of strong unidentifiability in tort law, namely the victim’s occasional inability to identify the direct wrongdoer, or even an ascertainable group to which the wrongdoer belongs, and bring an action against him or her. This Article offers a systematic analysis and a general theoretical framework for the appraisal of possible solutions to strong unidentifiability problems, which undermine liability and frustrate its goals.

Part I presents the main legal models developed and used to overcome these problems in different contexts and various legal systems: adherence to direct liability with creative procedural identification tools, …

Perceptions Of Justice In Multidistrict Litigation: Voices From The Crowd, Elizabeth Chamblee Burch, Margaret S. Williams

Scholarly Works

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup.

Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure …

Righting A Reproductive Wrong: A Statutory Tort Solution To Misrepresentation By Reproductive Tissue Providers, Yaniv Heled, Hillel Y. Levin, Timothy D. Lytton, Liza Vertinsky

Scholarly Works

Fraud, misrepresentation, and other unfair trade practices plague the market for human reproductive tissue. The sale of sperm, eggs, and embryos is virtually unregulated in almost all states, and courts have been inhospitable to victims. As a result, children are born with genetic disorders that impose extreme financial and personal hardship. Proposals for direct government oversight have, for the most part, failed to gain traction, and litigation has yielded inadequate remedies.

This Article assesses these problems and proposes model legislation that would eliminate doctrinal obstacles to holding unscrupulous reproductive tissue providers liable. By making it easier for parents to bring …

Airport Noise As Public Bads: Comparative Remarks On Legal Challenges In Resolving The Neighbor Conflict Between The Airport And Landowners, Magdalena Habdas

Journal of Air Law and Commerce

Incompatible uses of land create neighbor conflicts connected with the notions of civil law immissions (non-trespassory invasions) or common law nuisance. These traditional instruments of resolving the neighbor conflict have their limitations when pollution (such as noise pollution produced by aviation) interferes with the use and enjoyment of land that affects numerous landowners. Lawmakers seek to resolve the neighbor conflict with public intervention in such circumstances. Instead of relying on the market, the state allocates entitlements, indicates how parties must behave, and prescribes the conditions under which lawmakers should conclude an agreement.

Interestingly, although the nuisance caused by airport noise …

Anti-Subordination Torts, Scott Skinner-Thompson

Publications

No abstract provided.

Paging Doctor Robot: Medical Artificial Intelligence, Tort Liability, And Why Personhood May Be The Answer, Benedict See

Brooklyn Law Review

Artificial intelligence (AI) is a part of everyday life. From our phones, to social media accounts, to online shopping, AI is present and enhances our daily experiences. One area where AI has a heavy (and an increasing) presence is the medical industry. Just as humans make mistakes, so does AI. However, when a human doctor makes a mistake, they can be sued for malpractice, but when AI makes a mistake, who is to be held responsible? Because tort law was designed with humans in mind, it may be hard to apply to medical AI, who’s “black box” algorithms make their …

Contract Remedies Need Not Undercompensate Aspiring Parents When Cryopreserved Reproductive Material Is Lost Or Destroyed: Recovery Of Consequential Damages For Emotional Disturbance When Breach Of Contract Results In The Lost Opportunity To Become Pregnant With One's Own Biological Child, Joseph M. Hnylka

Journal of Law and Health

The Center for Disease Control and Prevention (CDC) has reported that the use of assisted reproductive technology (ART) has doubled over the past decade. In vitro fertilization (IVF) is the most prevalent form of ART. During IVF, a woman’s eggs are extracted, fertilized in a laboratory setting, and then implanted in the uterus. Many IVF procedures use eggs or sperm that were stored using a process called cryopreservation. A recent survey reported that cryopreservation consultations increased exponentially during the coronavirus pandemic, rising as much as 60 percent. It is estimated that more than one million embryos are stored in cryopreservation …

Contracting Out Liability For Negligent Pre-Contractual Misrepresentation, Daniele Bertolini

Dalhousie Law Journal

This article examines the extent to which entire agreement clauses (EACs) and non-reliance clauses (NRCs) are enforceable to preclude actions for negligent pre-contractual misrepresentations. It is argued that courts could improve legal certainty and contractual fairness by adopting two distinct legal rules to be applied, respectively, to contracts between sophisticated parties and in adhesion contracts. First, it is suggested that in contracts between sophisticated parties only specific contractual barriers to actions should provide a complete defence against negligent misrepresentation claims. Under this rule, the exclusionary effect of EACs and NRCs would be achieved only if an express term of the …

The Duty Not To Continue Distributing Your Own Libels, Eugene Volokh

Notre Dame Law Review

Say something I wrote about you online (in a newspaper, a blog, or a social media page) turns out to be false and defamatory. Assume I wasn’t culpable when I first posted it, but now I’m on notice of the error.

Am I liable for defamation if I fail to remove or correct the erroneous material? Surprisingly, courts haven’t settled on an answer, and scholars haven’t focused on the question. Libel law is stuck in a time when newspapers left the publisher’s control as soon as they are printed—even though now an article or a post can be seen on …

Delegation And The Continuity Thesis, Andrew S. Gold

Faculty Scholarship

No abstract provided.

Libel By Omission Of Exculpatory Legal Decisions, Eugene Volokh

Notre Dame Law Review

Is it libelous to write that someone has been convicted of a crime, but to fail to mention that the conviction has been reversed? Or to write that someone has been charged, without mentioning the acquittal? The answers, it turns out, are often “yes”; this Article lays out the precedents that so conclude.

Beyond The Grave: A Fiduciary’S Access To A Decedent’S Digital Assets, Isabelle N. Sehati

Cardozo Law Review

No abstract provided.

Trouble With Treble Damages For Third Parties: The Georgia Streetgang Terrorism And Prevention Act, S. Meghan Pittman

Mercer Law Review

As the Georgia Supreme Court has issued its final opinion on the Georgia Streetgang Terrorism and Prevention Act, several issues are now raised. While the interpretation of the statute appears to be correct, the question still arises of whether or not this interpretation is consistent with the legislative intent of this Act as a whole.

Clearly, the issue which the Act was enacted to prevent was harm to innocent third-parties by criminal streetgangs. While a commercial property owners may not be able to fully police the area in which their property is located, shouldn’t these individuals be held to a …

Torts, Pamela A. Wilkins

Mercer Law Review

The Georgia Supreme Court’s torts decisions of the June 1, 2020, through May 31, 2021, survey period ran the gamut. Dog bite liability? Check. Proximate cause? Check. Negligent misrepresentation by a sperm bank? Alas, check. And apportionment of fault? Check, check, check. Two themes emerge from the cases of the past term. First, in the apportionment setting, one sees the court’s commitment to textualism and its readiness to interpret Georgia’s apportionment statutes as abrogating longstanding common-law doctrines. Second—and, not surprisingly, this is most apparent in the court’s business torts jurisprudence—one sees a deference to business interests: this is a business-friendly …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Development Of A Topics Course For Construction Law, Julia C. Hoever

Construction Management

The Cal Poly Construction Management program is designed to prepare students heading into the construction industry for daily management tasks. With construction comes many legal aspects integrated into a project’s operations. Though the curriculum includes a contract law course, a gap exists with a minimal number of classes that address the array of legal matters the construction industry must be versed in. Working with faculty member, Thomas Kommer, J.D., there is a need for a course that expands on these varying legal topics. In order to determine the specific topics that would impactfully benefit and educate Cal Poly Construction Management …

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Strictly Speaking, What Needs To Change? A Review Of How Statutory Changes Could Bring Strict Products Liability To Virginia, Ryan C. Fowle

University of Richmond Law Review

Virginia remains one of five states that refuse to adopt strict products liability. To date, the Supreme Court of Virginia has declined to follow the path Justice Traynor set out nearly a century ago, as its recent decisions confirm its resistance to strict liability. However, given the change in control of the General Assembly following the elections of 2017 and 2019, the General Assembly is in new hands and may remain that way for some time. This new legislative majority, among its plans for new policies, may soon consider establishing strict products liability by statute. In doing so, Virginia would …

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Scholarship

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …

Tort Law: Cases & Critique, Thomas E. Kadri

Books

My goal in creating this casebook is to do my part to make legal education more affordable, accessible, and adaptable. That’s why I’m making the book available to all for free. By using a CC BY-NC license, I’m also inviting others to adapt these materials for their own use, so long as they adhere to the non-commerciality and attribution terms. (Anyone interested in “remixing” this book for their own purposes should feel free to contact me, including if you’d like a more adaptable non-PDF version.)

You’re welcome to print any part of this casebook if you want a hard …

Tort Remedies In Military Prisons And Brigs, Brenner M. Fissell, Max Jesse Goldberg

Faculty Publications

Symposium on Military Justice October 2021.

Hosted by National Institute of Military Justice (In honor of NIMJ's 30th Anniversary)

The Ratio Method: Addressing Complex Tort Liability In The Fourth Industrial Revolution, Harrison C. Margolin, Grant H. Frazier

St. Mary's Law Journal

Emerging technologies of the Fourth Industrial Revolution show fundamental promise for improving productivity and quality of life, though their misuse may also cause significant social disruption. For example, while artificial intelligence will be used to accelerate society’s processes, it may also displace millions of workers and arm cybercriminals with increasingly powerful hacking capabilities. Similarly, human gene editing shows promise for curing numerous diseases, but also raises significant concerns about adverse health consequences related to the corruption of human and pathogenic genomes.

In most instances, only specialists understand the growing intricacies of these novel technologies. As the complexity and speed of …

Immunity Confusion: Why Are Ohio Courts Unable To Apply A Clear Immunity Standard In School-Bullying Cases?, Liam Mcmillin

University of Cincinnati Law Review

No abstract provided.

Absolute Publishing Power And Bulletproof Immunity: How Section 230 Shields Internet Service Providers From Liability And Makes It Impossible To Protect Your Reputation Online, Victoria Anderson

Seattle University Law Review Online

No abstract provided.

Qualified Immunity: Round Two, Andrew Coan, Delorean Forbes

Washington and Lee Law Review

For the first time in its fifty-year history, the future of qualified immunity is in serious doubt. The doctrine may yet survive for many years. But thanks largely to the recent mass movement for racial justice, major reform and abolition are now live possibilities. This development raises a host of questions that have been little explored in the voluminous literature on qualified immunity because its abolition has been so difficult to imagine before now. Perhaps the most pressing is how overworked federal courts will respond to a substantial influx of new cases fueled by qualified immunity’s curtailment or demise. Might …

Assumption Of Risk In Consumer Contracts And The Distraction Of Unconscionability, Zahra Takhshid

Cardozo Law Review

For years, courts have struggled to determine when to enforce exculpatory clauses that would prevent personal injury victims from availing themselves of tort remedies under the doctrine of express assumption of risk. In the past, when courts declined to enforce these clauses, they did so on the ground that enforcing such a waiver for the activities in question was “against public policy.” Recently, however, many courts have addressed the issue through the contract doctrine of “unconscionability.” This change in focus has subtly but importantly altered the enforceability inquiry by emphasizing the conditions under which the plaintiff agreed to the contract, …

Deceive, Profit, Repeat: Public Deception Schemes To Conceal Product Dangers, Wes Henricksen

Cardozo Law Review

Companies in numerous industries have misled the public by hiding the dangers posed by their products. Sugar manufacturers hid the dangers of high fructose corn syrup and misdirected the public’s attention to fat, causing an epidemic of diabetes, obesity, and heart disease. Opioid manufacturers hid the dangers and addictiveness of opioid painkillers, leading to the opioid crisis. Fossil fuel companies misled the public about the causes, certainty, and effects of global warming, resulting in massive unregulated CO2 emissions and causing one of the greatest threats to humankind. This Article identifies all such schemes as belonging to a category of wrongs …

Suffering Uncompounded: Civilizing Healthcare Standards For Gender Dysphoric Prisoners, Julian S. Cohen

Cardozo Law Review

No abstract provided.

Q: What Is Tort? A: Categorical Hurt, Anita Bernstein

Faculty Scholarship

No abstract provided.