Torts Commons^™

Determining Trademark Standing In The Wake Of Lexmark, John L. Brennan

Notre Dame Law Review

This Note examines relevant statutory language, case law, and scholarly criticism, and ultimately contends that the standard articulated in Lexmark should apply to both types of claims. Part I provides background regarding the history of the Lanham Act, looking particularly at the ways in which courts have treated trademarks and false advertising differently. Part II discusses the Lexmark decision and the recent district court cases that have addressed its holding. Part III examines the text of both the Lanham Act and the Supreme Court’s opinion in Lexmark in order to determine the decision’s scope, and concludes that Lexmark’s holding …

Blackburn Limited Partnership V. Paul: The Birth Of Maryland’S Statute Or Ordinance Rule And Its Ill-Defined “Targeted Class” Requirement, Monica Basche

Maryland Law Review

No abstract provided.

Oil, Fire, Smoke And Mirrors: The Gulf Coast Claims Facility And Its Dangerous Precedent, Nicholas Guidi

William & Mary Environmental Law and Policy Review

No abstract provided.

Pricing Lives For Corporate Risk Decisions, W. Kip Viscusi

Vanderbilt Law Review

The 2014 GM ignition-switch recall highlighted the inadequacies of the company's safety culture and the shortcomings of regulatory sanctions. The company's inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should place a greater value on lives at risk than they have in previous risk analyses and that they should receive legal protections for product risk analyses. Companies' valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently …

No Harm, No Foul? "Attempted" Invasion Of Privacy And The Tort Of Intrusion Upon Seclusion, Eli A. Meltz

Fordham Law Review

    The tort of intrusion upon seclusion protects individuals from unwanted invasions into their personal space and personal affairs. While courts differ as to the precise definition and scope of this tort, at the most basic level, a claim for intrusion upon seclusion alleges that the defendant has unreasonably interfered with the plaintiff’s legitimate interest in maintaining some degree of privacy in his or her personal affairs. This Note analyzes an interesting issue that has emerged concerning the application of this tort: Should a defendant be held liable when he or she has attempted to observe the plaintiff in a private …

Filartiga V. Pena-Irala: International Justice In A Modern American Court?, Josef Rohlik

Georgia Journal of International & Comparative Law

No abstract provided.

Filartiga V. Pena-Irala: Comments On Sources Of Human Rights Law And Means Of Redress For Violations Of Human Rights, Gabriel M. Wilner

Georgia Journal of International & Comparative Law

No abstract provided.

Requiem For A Remedy: The Law And Economics Of Mutual Pharmaceutical V. Bartlett’S Over-Preemption, Robert C. Baker Iii

Maryland Law Review Online

No abstract provided.

Summary Of Karen Brown V. Eddie World, Inc.; And Stagecoach Hotel And Casino, Inc., 131 Nev. Adv. Op. 19 (April 16, 2015), Daven Cameron

Nevada Supreme Court Summaries

While acknowledging the enforcement gaming laws as a fundamental public policy in Nevada, the Court declined to recognize a common law cause of action for third-party retaliatory discharge.

Avneri V. Knesset, Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Salim Joubran, Neal Hendel, Uzi Vogelman

Translated Opinions

Facts: The petitions sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law). The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights (inter alia, freedom of expression, the right to equality, freedom of occupation), without meeting the conditions of the “Limitation Clauses” of Basic Law: Human Dignity …

Avneri V. The Knesset (Summary), Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Neal Hendel, Salim Joubran, Uzi Vogelman

Translated Opinions

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott (“Boycott Law”). This 2001 law establishes tort liability for, and sets administrative restrictions on, knowingly and publicly publishing calls for a boycott on Israel. The petitioners claimed that the Boycott Law infringes on various constitutional rights, including free expression, equality, and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. A divided Court upheld most of the law's provisions.

Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor

Georgia Journal of International & Comparative Law

No abstract provided.

Impairment Of The Operation Of The Warsaw Convention By Recent Legislative And Judicial Action, Alan N. Sutin

Georgia Journal of International & Comparative Law

No abstract provided.

The Future Of Emotional Harm, Betsy J. Grey

Fordham Law Review

    Why should tort law treat claims for emotional harm as a second-class citizen? Judicial skepticism about these claims is long entrenched, justified by an amalgam of perceived problems ranging from proof difficulties for causation and the need to constrain fraudulent claims, to the ubiquity of the injury, and a concern about open-ended liability. To address this jumble of justifications, the law has developed a series of duty limitations to curb the claims and preclude them from reaching the jury for individualized analysis. The limited duty approach to emotional harm is maintained by the latest iteration of the Restatement (Third) of …

The Uneasy And Often Unhelpful Interaction Of Tort Law And Constitutional Law In First Amendment Litigation, George C. Christie

Marquette Law Review

There are increasing tensions between the First Amendment and the common law torts of intentional infliction of emotional distress, defamation, and privacy. This Article discusses the conflicting interactions among the three models that are competing for primacy as the tort law governing expressive activities evolves to accommodate the requirements of the First Amendment. At one extreme there is the model that expression containing information which has been lawfully obtained that contains neither intentional falsehoods nor incitements to immediate violence can only be sanctioned in narrowly defined exceptional circumstances, even if that expression involves matters that are universally regarded as being …

Legal Pluralism In Tort Law Theory: Balancing Instrumental Theories And Corrective Justice, Benjamin Shmueli

University of Michigan Journal of Law Reform

Unified-monistic theories of tort law focus on a single goal, usually corrective justice, distributive justice, or optimal deterrence. Unlike these approaches, mixedpluralistic theories attempt to balance between various goals of tort law by integrating several of the considerations underlying these different goals. These theories of legal pluralism reflect ideological diversity, in this case between different theories of the same legal system. This Article discusses the challenge of legal pluralism to settle the possible collision between different goals of tort law within the framework of tort law theory. Starting from a position of support for the mixed-pluralistic thesis, this Article first …

Tort, Speech, And The Dubious Alchemy Of State Action, Cristina Carmody Tilley

Faculty Publications

Plaintiffs have historically used private law torts like defamation, privacy, and intentional infliction of emotional distress to vindicate their dignitary interests. But fifty years ago in New York Times v. Sullivan, the Supreme Court took an unprecedented approach to state action doctrine in order to recast these causes of action as public-private law hybrids that explicitly privileged speech over dignity. In constitutional challenges to private law disputes, the Court had for decades defined the state action under review to include just the contested verdict at issue. In Sullivan, it broke with that practice and defined the relevant state action to …

Duress As Rent-Seeking, Mark Seidenfeld, Murat C. Mungan

Faculty Scholarship

The doctrine of duress allows a party to avoid its contractual obligations when that party was induced to enter the contract by a wrongful threat while in a dire position that left it no choice but to enter the contract. Although threats of criminal or tortious conduct clearly are wrongful, under the doctrine of “economic duress” courts have held that other threats can be wrongful and hence the basis of a duress defense. Courts, however, have not developed a coherent understanding of what makes such non-criminal and non-tortious threats wrongful.

This Article proposes that a threat should be wrongful when …

Travelers Beware: Tort Liability In The Sharing Economy, Talia G. Loucks

Washington Journal of Law, Technology & Arts

Participation in the sharing economy makes consumers’ lives easier. From the rental of a house or room via room share sites like Airbnb to getting a ride around the city using rideshare apps such as Uber and Lyft, travelers have found less traditional and more affordable ways to explore. With these innovations, however, come risks for users. For example, Airbnb hosts do not owe guests the same duties as a hotel operator. Additionally, drivers’ insurance policies may not apply when operating for profit through a rideshare program. This Article examines the current liability issues that arise in the sharing economy. …

A Sea Change In Creditor Priorities, Kristen Van De Biezenbos

University of Michigan Journal of Law Reform

This Article argues that the operation of maritime law undermines a primary justification for creditor priorities under U.S. law. Under current law, when a debtor becomes insolvent, its secured creditors will be paid the full amount of their debt to the extent of their security interest, even if that leaves nothing to pay unsecured creditors. This is controversial with respect to involuntary unsecured creditors, particularly those with tort claims against the debtor. Defenders of this scheme of priorities have argued that allowing greater priority to involuntary creditors would hinder the availability or increase the cost of credit. However, involuntary creditors …