Torts Commons^™

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Dalhousie Law Journal

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Rising Tide: The Second Wave Of Climate Torts, Maximillian Scott Matiauda

University of Miami International and Comparative Law Review

Fossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated …

Pelaksanaan Perjanjian Akibat Terjadinya Wanprestasi Karena Pandemi Covid-19: Studi Perbandingan Di Indonesia Dan Malaysia, Nadya Aurelia Salsabila

Lex Patrimonium

The Covid-19 pandemic has had a significant impact on various aspects of people’s lives, one of which is the existence of contracts whose implementation has been disrupted because there are some of parties who cannot fulfill their achievements or contractual obligations by postulating the Covid-19 pandemic as a category of force majeure. This research discusses the implementation of contracts due to defaults due to the Covid-19 pandemic in Indonesia and Malaysia. The method used is normative juridical by examining laws and regulations and court decisions in the two countries which are the focus of comparison in this research. The conclusion …

Urgensi Pengawasan Terhadap Penyedia Jasa Pengiriman Dalam Kegiatan E-Commerce: Studi Komparasi Indonesia Dengan Malaysia, Lydia Azzahro Silparensi, Abdul Salam

Lex Patrimonium

Delivery service providers are a role that is needed, especially with the increase in e-commerce activity. However, the implementation of courier services is still lacking in overcoming these problems. As an effort to increase supervision while adapting it to consumer needs, an analysis was carried out using a normative juridical method by comparing the two institutions between Indonesia and Malaysia. Institutions in Malaysia are different from Indonesia which are under the auspices of the Ministry of Communication and Informatics, that the Malaysian Institution known as the Malaysian Communications and Multimedia Commission is an institution whose role is to oversee communication …

Aspek Keperdataan Terhadap Arisan Online: Studi Kasus Putusan Nomor 1/Pdt.G.S/2021/Pn. Trt, Catherine Sukutania, Abdul Salam

Lex Patrimonium

The development of communication technology gave birth to various phenomena in society, one of which is the arisan online phenomenon. Previously, arisan was often found in the midst of Indonesian society and was carried out conventionally by holding meetings between its members. Currently, arisan can be found online through various social media with various types and methods of implementation. In arisan, there is an engagement relationship between members of the arisan and the chairman or owner of the arisan. In general, arisan is carried out only with an oral agreement between the members and the chairman. Online arisan activities are …

Economic Recession As The Basis For Termination Of Employment Due To Force Majeure In Indonesia, Khalillah Lenggogeni

Lex Patrimonium

The economy is the most influential aspect in society. The Economics situation is one of the considerations in fulfilling achievements in agreements. The purpose of this study is to examine the economic recession that can be used as a reason for termination of employment due to force majeure in Law No. 13 of 2003 concerning Manpower. This research is a normative juridical research. The state of the company's economy, which is often affected by the country's economic growth, is often one of the factors why companies have to terminate their employment. The termination of employment under the pretext of an …

Legal Position Of Fiduciary Guarantee Certificate Based On Fiduciary Guarantee Deed Under Hand, Furqoniah Hayati, Akhmad Cahyono

Lex Patrimonium

The provisions of Article 5 paragraph (1) of Law Number 42 of 1999 concerning Fiduciary Guarantees stipulate that a fiduciary guarantee deed must be drawn up with a notarized deed and registered. The legal consequences for deeds that are not made with a notarized deed and registered cause there is no legal certainty and protection for the parties, both finance companies as creditors and consumers as debtors. The purpose of this study is to determine the validity of fiduciary guarantees under the private deed, how a fiduciary guarantee under a private deed can be registered, as well as the executorial …

Tinjauan Yuridis Terhadap Pembatalan Sepihak Oleh Pembeli Dalam Perjanjian Jual Beli Melalui Marketplace Dengan Sistem Pembayaran Cash On Delivery, Zahra Adinda Atyarisma, Lauditta Humaira

Lex Patrimonium

The rapid development of technology often creates new problems. One of them is an event where the buyer refuses to pay for an order package made through a marketplace with a cash on delivery payment system where this event can make the seller suffer a loss. The research method used is normative juridical research by analyzing reading materials and laws and regulations related to the nature of analytical descriptive research. Data collection uses secondary data consisting of primary legal materials, namely legislation and secondary legal materials, namely books, journals, and articles related to primary legal materials. The results of the …

Tinjauan Yuridis Terhadap Praktik Konversi Bunga Menjadi Saham Pada Perusahaan X Di Indonesia, Nadya Amanda Putri, Dr. Akhmad Budi Cahyono

Lex Patrimonium

Since it was announced that Indonesia had experienced the Covid-19 pandemic, the structure of the national economy immediately dropped drastically. This condition occurs because business actors are unable to carry out their business activities under ideal conditions which reduce the income of business actors on a national scale. With the unstable income of each business actor, it is difficult for each of them to pay their debt obligations. These difficulites make companies choose other alternatives to pay their obligations by way of entering into a debt restructuring agreement. In a study conducted on PT X and PT Z, both of …

Emotional Distress Claims, Dignitary Torts, And The Medical-Legal Fiction Of Reasonable Sensitivity, Alessandra Suuberg

Journal of Law and Health

Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the "Highly Sensitive Person" (HSP) construct in psychology and asking whether the IIED tort’s 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom

Maine Law Review

Global climate change and its attendant impacts threaten to change life on Earth as we know it. The sea level rise that comes with rising temperatures is an issue of particular importance to coastal states like Maine. Thankfully, continued investment in renewable energy technology is beginning to make certain renewable energy sources competitive with their nonrenewable counterparts. This Comment highlights wind energy as a particularly effective option for meeting Maine’s energy needs while significantly reducing the harmful greenhouse gas emissions that contribute to climate change. Despite its many benefits, wind energy technology still has its detractors. Wind energy projects (especially …

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

Permasalahan Konsepsi Harta Bersama Dalam Kepemilikan Saham Perseroan Terbatas (Studi Kasus Putusan Nomor 80/Pdt.G/2020/Pn.Jkt.Utr), Mutiara Husna Wahono, Lauditta Humaira

Lex Patrimonium

A limited liability company as a legal entity adheres to the principle of a separate legal entity which creates the concept of limited liability of its shareholders. The existence of these two concepts automatically separates the assets of the limited liability company from the personal assets of its shareholders. Even though the shareholders are part owners of the limited liability company, the shareholders cannot claim the assets of the limited liability company. Shares acquired while in marital status can become joint property. However, the Indonesian Marriage Law does not provide special arrangements or mechanisms regarding the distribution of joint assets, …

Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro

Indiana Law Journal

We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

A Matter Of Motive: Malice In The Law Of Torts In The Age Of Connectivity, Greg Bowley

Dalhousie Law Journal

To meet the challenges posed by the novel modes of interpersonal relationships of contemporary society, Canadian tort law must develop a general principle of liability for the intentional infliction of harm. This principle would recognize the normatively-significant common thread of the wrongdoer’s intention to cause harm to another person in phenomena as varied as doxing, swatting, revenge porn, cyberstalking, impersonation, trolling, and harassment. The recent development of discrete, context-specific torts in response to problematic social media conduct is an inherently limited approach to novel interpersonal conduct. However, it also offers an opportunity for the enunciation of a general principle of …

Climate Discrimination, Duane Rudolph

Catholic University Law Review

This Article focuses on the coming legal plight of workers in the United States, who will likely face discrimination as they search for work outside their home states. The Article takes for granted that climate change will have forced those workers across state and international boundaries, a reality dramatically witnessed in the United States during the Dust Bowl of the 1930s. During that environmental emergency (and the devastation it wrought), workers were forced across boundaries only to be violently discriminated against upon arrival in their new domiciles. Such discrimination is likely to recur, and it will threaten the livelihoods of …

Tort Theory And The Restatement, In Retrospect, Keith N. Hylton

Faculty Scholarship

This is my third paper on the Restatement (Third) of Torts. In my first paper, The Theory of Tort Doctrine and the Restatement (Third) of Torts, I offered a positive economic theory of the tort doctrine that had been presented in the Restatement (Third) of Torts: General Principles, and also an optimistic vision of how positive theoretical analysis could be integrated with the Restatement project. In my second paper, The Economics of the Restatement and of the Common Law, I set out the utilitarian-economic theory of how the common law litigation process could generate optimal (efficient, wealth-maximizing) rules and compared …