Torts Commons^™

Antitrust Class Actions In The Wake Of Procedural Reform, Christine P. Bartholomew

Indiana Law Journal

What is the current vitality of antitrust enforcement? Antitrust class actions—the primary mode of competition oversight—has weathered two decades of procedural reform. This Article documents the effects of those reforms. Relying on an original dataset of over 1300 antitrust class action settlements, this Article finds such cases alive but far from well. Certain suits do succeed on an impressive scale, returning billions of dollars to victims. But class action reform has made antitrust enforcement narrower, more time-consuming, and costlier than only a decade ago. And, as this Article’s sources reveal, new battle lines are forming. Across the ...

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.

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

West Virginia Law Review

No abstract provided.

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 ...

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 ...

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 ...

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 ...

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 ...

Sovereign Immunity Or: How The Federal Government Learned To Stop Worrying And Love The Discretionary Function Exception, Tristen Rodgers

Boston College Law Review

The doctrine of sovereign immunity generally bars suits against the federal government. The Federal Tort Claims Act, however, waives sovereign immunity for a broad class of tort claims against the United States. It contains several exceptions, including the discretionary function exception that precludes suit against the federal government if the underlying conduct involved individual judgment or choice. In 2021, in Shivers v. United States, the U.S. Court of Appeals for the Eleventh Circuit held that the discretionary function exception to the Federal Tort Claims Act applies even where the plaintiff alleges that the conduct at issue violated the U ...

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 ...

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 ...

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 ...

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.

Toxic Promises, Shmuel I. Becher, Yuval Feldman, Meirav Furth-Matzkin

Boston College Law Review

Sellers often make manipulative and dishonest claims about their products and services. Such claims, which are more likely to be present in oral interactions, substantially influence consumers’ choices. We term these claims “toxic promises.”

This Article argues that the law currently underestimates, and does not properly respond to, the social harms that toxic promises generate. Insights from behavioral ethics suggest that even ordinary, law-abiding sellers can frequently make such manipulative assertions. At the same time, contracting realities might lead consumers to rely heavily on these toxic promises. When consumers discover that they have been manipulated, it is often too late ...

"The Right To Protest For Right": Reaffirming The First Amendment Principle That Limits The Tort Liability Of Protest Organizers, Allison R. Ferraris

Boston College Law Review

On December 16, 2019, the U.S. Court of Appeals for the Fifth Circuit held in Doe v. Mckesson that a court could hold DeRay Mckesson liable for damages to a police officer whom an unidentified assailant injured at a 2016 Black Lives Matter protest that Mckesson helped organize. Mckesson did not cause the officer’s injuries, and he did not order, encourage, or incite the protestors at the demonstration to act violently. The Fifth Circuit held that Mckesson could be liable only because he played a role in organizing the demonstration. In 1982, the U.S. Supreme Court set ...

Rationing Healthcare During A Pandemic: Shielding Healthcare Providers From Tort Liability In Uncharted Legal Territory, Frederick V. Perry, Miriam Weismann

University of Miami Business Law Review

As the coronavirus pandemic intensified, many communities in the U.S. experienced shortages of ventilators, ICU beds, and other medical supplies and treatment. There was no single national response providing guidance on the allocation of scarce healthcare resources. There has been no consistent state response either. Instead, various governmental and nongovernmental state actors in several but not all states formulated “triage protocols,” known as Crisis Standards of Care, to prioritize patient access to care where population demand exceeded supply. One intended purpose of the protocols was to immunize or shield healthcare providers from tort liability based on injuries resulting from ...

Fertility Fraud: The Child's Claims, Fredrick E. Vars

Boston College Law Review

A shocking number of fertility doctors surreptitiously use their own sperm during insemination procedures. Courts and commentators have explained how medical malpractice and common-law tort claims can provide the mother with remedies. The children of fertility fraud have received less attention. This Essay is the first to systematically analyze the potential claims of these children, whose identities may be shattered by discovering the truth about their biological father. It concludes that creative use of existing common-law torts can provide remedies for children of fertility fraud.