Torts Commons^™

Restating The "F" Word: The Cursing Cheerleader, The First Amendment, And Proximate Cause, Don Corbett

University of San Francisco Law Review

No abstract provided.

Legal Fiction: Reading Lolita As A Sentencing Memorandum, Christina Frohock

Articles

No abstract provided.

Laprocina V. Lourie, 250 A.3d 1281 (R.I. 2021), Jeffrey Prystowsky

Roger Williams University Law Review

No abstract provided.

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

Antibody Claims And The Evolution Of The Written Description/Enablement Requirement, S Sean Tu, Christopher M. Holman

Faculty Works

No abstract provided.

Institutional Choice For Software Safety Standards, Bryan H. Choi

Publications

The pursuit of software safety standards has stalled. In response, commentators and policymakers have looked increasingly to federal agencies to deliver new hope. Some place their faith in existing agencies while others propose a new super agency to oversee software-specific issues. This turn reflects both optimism in the agency model as well as pessimism in other institutions such as the judiciary or private markets.

This Essay argues that the agency model is not a silver bullet. Applying a comparative institutional choice lens, this Essay explains that the characteristic strengths of the agency model—expertise, uniformity, and efficiency—offer less advantage than one …

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

This Aggression Will Not Stand, Schools: The Need For Federal Legislation Protecting Bullied Students With Disabilities, Russell A. Vogel

Touro Law Review

A boy with Autism comes home from school, visibly upset. His parents ask him why, and he responds that nobody in his class likes him. To his parents’ horror, they learn that their son’s teacher encouraged a class discussion about why they dislike their son. When the boy’s parents complain to the school about this issue, school administrators brush it aside. The next day, students sitting near the boy move their desks away from him and taunt him for the way he acts every time he tries to socialize with them. The boy then refuses to go to school each …

Taxation Of Tort Damages, Patricia A. Cain

Oklahoma Law Review

No abstract provided.

Will Products Liability Litigation Help Protect Iot Users From Cyber-Physical Attacks?, J Royce Fichtner, Troy J. Strader

Journal of International Technology and Information Management

While there is an identifiable trend towards protecting consumers from data breaches and data misuses related to IoT devices through new legislation, new regulations, government enforcement actions, and private lawsuits, there has been little progress towards creating similar legally enforceable standards of care for “cyber-physical device security.” This article explores this underdeveloped area of academic inquiry into cyber-physical device security within the context of product liability litigation in the United States. The two questions addressed in this article are: (1) Have there been any successful products liability court decisions in the United States that have held IoT manufacturers liable for …

Sequencing In Damages, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer …

The Other Hand Formula, Maytal Gilboa, Yotam Kaplan

Lewis & Clark Law Review

A defendant who obtained an undeserved benefit at the plaintiff’s expense must make restitution of that benefit. This is the fundamental maxim of the law of unjust enrichment, allowing recovery based on the defendant’s gain rather than on the plaintiff’s loss. Unfortunately, liability in unjust enrichment is notoriously unprincipled. The key problem is that scholars and courts cannot agree on the correct manner for distinguishing meritorious claims from non-meritorious ones in this important area of the law.

To correct this deficiency, the present Essay provides a simple mathematical formula explaining when plaintiffs should be able to recover the defendant’s gain …

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 …

Bankruptcy Grifters, Lindsey Simon

Scholarly Works

Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.

But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …

Platforms As Blackacres, Thomas E. Kadri

Scholarly Works

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people’s privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You’d think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he’d be confessing to breaking the law—to committing the crime and tort of cyber-trespass. …

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 …

Applying Products Liability Law To Facebook’S Platform And Algorithms: Addiction, Radicalization, And Real-World Harm, Grant W. Shea

University of Richmond Law Review

Facebook has become central to the lives of millions of Americans. As of 2021, 69% of U.S. adults use Facebook. Among those U.S. adults who use Facebook, roughly 70% visit Facebook at least once a day. Moreover, as of 2020, 36% of U.S. adults receive their news through Facebook. That means roughly 60 million U.S. adults receive their news through Facebook each day. Facebook’s impact on American society cannot be overstated when viewed through such a lens. Thus, it is important to ensure Facebook responsibly designs its products: its platform and its algorithms.

Legislating Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers looking to embolden privacy law have begun to consider imposing duties of loyalty on organizations trusted with people’s data and online experiences. The idea behind loyalty is simple: organizations should not process data or design technologies that conflict with the best interests of trusting parties. But the logistics and implementation of data loyalty need to be developed if the concept is going to be capable of moving privacy law beyond its “notice and consent” roots to confront people’s vulnerabilities in their relationship with powerful data collectors.

In this short Essay, we propose a model for legislating data loyalty. Our …

The Color Of Pain: Racial Bias In Pain And Suffering Damages, Maytal Gilboa

Georgia Law Review

For more than half a century, our legal system has formally eschewed race-based discrimination, and nearly every field of law has evolved to increase protections for minority groups historically burdened by racial prejudice. Yet, even today, juries in tort actions routinely consider a plaintiff’s race when calculating compensatory tort damages, and they do so in a manner that systematically results in lower awards to Black plaintiffs than to White. This Article examines this problem, zeroing in on the specific issue of racial bias in calculations of tort damages for pain and suffering.

The severity of a plaintiff’s injury is commonly …

Replies To Commentators, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

With gratitude for our commentators’ thoughtful and generous engagement with Recognizing Wrongs, we offer in this reply a thumbnail summary of their comments and responses to some of their most important questions and criticisms. In the spirit of friendly amendment, Tom Dougherty and Johann Frick suggest that a more satisfactory version of our theory would cast tort actions as a means of enforcing wrongdoers’ moral duties of repair. We provide both legal and moral reasons for declining their invitation. Rebecca Stone draws a particular link between civil recourse in private law theory and the right of self-defense as recognized in …

How Covid-19 Put The Spotlight On The Emtala, Ikra Kafayat

Touro Law Review

There was a time when those that were unable to afford medical care risked being denied treatment in emergency situations. Before Congress passed Emergency Medical Treatment & Labor Act (EMTALA), patients were being transferred to different hospitals, without being screened, because they did not have insurance and could not afford the treatment. Hospitals are no longer allowed to transport patients without properly screening and stabilizing them. Patients can bring a suit against a hospital if they believe the hospital violated EMTALA, however, in certain circuits the patient will need to prove that hospital had an “improper motive” for failing to …

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, …

Three Kinds Of Fault: Understanding The Purpose And Function Of Causation In Tort Law, Marin Roger Scordato

Scholarly Articles

Causation is a concept of enormous importance in the law. In just the last two years, the United States Supreme Court has explicitly considered its importance and meaning on at least three occasions, in areas of the law as diverse as specific personal jurisdiction, Title IX, and Section 1981. It has also been the subject of sustained scholarly examination and debate. In no area of the law is causation as foundational and omnipresent as in tort law, and in no sphere within tort law is it more prevalent than in its dominant cause of action, negligence. Unsurprisingly then, the causation …

Anti-Subordination Torts, Scott Skinner-Thompson

Publications

No abstract provided.

The Surprising Virtues Of Data Loyalty, Neil M. Richards, Woodrow Hartzog

Scholarship@WashULaw

Lawmakers in the United States and Europe are seriously considering imposing duties of data loyalty that implement ideas from privacy law scholarship, but critics claim such duties are unnecessary, unworkable, overly individualistic, and indeterminately vague. This paper takes those criticisms seriously, and its analysis of them reveals that duties of data loyalty have surprising virtues. Loyalty, it turns out, can support collective well-being by embracing privacy’s relational turn; it can be a powerful state of mind for reenergizing privacy reform; it prioritizes human values rather than potentially empty formalism; and it offers solutions that are flexible and clear rather than …

Nominal Damages As Vindication, Sadie Blanchard

Journal Articles

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages …