Torts Commons^™

Apportioning Responsibility Among Joint Tortfeasors For International Law Violations, Roger P. Alford

Journal Articles

With the new wave of claims against corporations for human rights violations – particularly in the context of aiding and abetting government abuse – there are unusually difficult problems of joint tortfeasor liability. In many circumstances, one tortfeasor – the corporation – is a deep-pocketed defendant, easily subject to suit, but only marginally involved in the unlawful conduct. Another tortfeasor – the sovereign – is a central player in the unlawful conduct, but, with limited exceptions, is immune from suit under the Foreign Sovereign Immunities Act. A third tortfeasor – the low-level security personnel – accused of actually committing the …

The Constitutionality Of And Need For Retroactive Civil Legislation Relating To Child Sexual Abuse, Jenna Miller

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the constitutionality and necessity of retroactive child sexual abuse laws, arguing that they provide victims with a pathway to justice despite statutes of limitations. It supports this stance with Supreme Court rulings and examples of successful implementations in states like California and Delaware, emphasizing the balance between victims' rights and defendants' rights.

He's So Gay ... Not That There's Anything Wrong With That: Using A Community Standard To Homogenize The Measure Of Reputational Damage In Homosexual Defamation Cases, Abigail A. Rury

Cardozo Journal of Equal Rights & Social Justice

The note examines the role of the community standard in determining defamation, particularly in cases involving false claims of homosexuality. It argues that the current application of the community standard often lacks clarity and may reflect judicial biases, leading to inconsistent rulings. The note proposes reforms to enhance the accuracy and transparency of defamation analysis by adopting a contemporary community standard, similar to that used in obscenity law, which considers specific geographic and social contexts.

Open Robotics, M. Ryan Calo

Articles

Robotics is poised to be the next transformative technology. Robots are widely used in manufacturing, warfare, and disaster response, and the market for personal robotics is exploding. Worldwide sales of home robots—such as iRobot’s popular robotic vacuum cleaner—are in the millions. In fact, Honda has predicted that by the year 2020, it will sell as many robots as it does cars. Microsoft founder Bill Gates believes that the robotics industry is in the same place today as the personal computer (“PC”) business was in the 1970s, a belief that is significant given that there are now well over one billion …

Tort Liabilities And Torts Law: The New Frontier Of Chinese Legal Horizon, Mo Zhang

Richmond Journal of Global Law & Business

China did not have a single body of torts law until 2009. As a new piece of legislation in the country, the Torts Law of China, effective as of July 1, 2010, forms a comprehensive framework that regulates torts and provides a legal mechanism to govern liabilities and remedies. A product of the civil law tradition, common law practice and Chinese reality combined, adoption of the Torts Law is hailed in China as an important move toward a civil society that is ruled by law.

The Torts Law premises torts on the fault liability with a few exceptions where the …

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

Scholarly Articles in Law Reviews & Journals

his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Scholarly Articles in Law Reviews & Journals

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …

Oklahoma Landlords Beware: Miller V. David Grace, Inc. Abandons Caveat Emptor In Residential Leases, Jamie M. Powers

Oklahoma Law Review

No abstract provided.

Emotion, Neuroscience, And Law: A Comment On Darwin And Greene, John Mikhail

Georgetown Law Faculty Publications and Other Works

Darwin’s (1871) observation that evolution has produced in us certain emotions responding to right and wrong conduct that lack any obvious basis in individual utility is a useful springboard from which to clarify the role of emotion in moral judgment. The problem is whether a certain class of moral judgments is “constituted” or “driven by” emotion (Greene 2008, p. 108) or merely correlated with emotion while being generated by unconscious computations (e.g., Huebner et al. 2008). With one exception, all of the “personal” vignettes devised by Greene and colleagues (2001, 2004) and subsequently used by other researchers (e.g., Koenigs et …

Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee

Faculty Scholarship

No abstract provided.

Causation In The Fiduciary Realm, Deborah A. Demott

Faculty Scholarship

No abstract provided.

Economic Loss, Punitive Damages, And The Exxon Valdez Litigation, Dr. Ronen Perry

Georgia Law Review

On March 24, 1989, the Exxon Valdez ran aground on
Bligh Reef off the Alaskan coast, spilling millions of
gallons of crude oil into Prince William Sound. At the

time, the spill was probably the worst environmental
disaster in American history, and it sparked unusually
extensive and complex litigation, as well as a vast
academic literature. The Article uncovers a fundamental
yet unnoticed inconsistency in American land-based and
maritime tort law that surfaced through the Exxon Valdez
litigation. On the one hand, liability for purely economic
losses was strictly limited under Robins Dry Dock v. Flint,
leaving dozens of thousands …

Consent V. Closure, Howard M. Erichson, Benjamin C. Zipursky

Faculty Scholarship

Claimants, defendants, courts, and counsel are understandably frustrated by the difficulty of resolving mass tort cases. Defendants demand closure, but class certification has proved elusive and non-class settlements require individual consent. Lawyers and scholars have been drawn to strategies that solve the problem by empowering plaintiffs’ counsel to negotiate package deals that effectively sidestep individual consent. In the massive Vioxx settlement, the parties achieved closure by including terms that made it unrealistic for any claimant to decline. The American Law Institute’s Principles of the Law of Aggregate Litigation offers another path to closure: it proposes to permit clients to consent …

The Rule Of Law And Enforcement Of Chinese Tort Law, Vincent R. Johnson

Faculty Articles

The majority of the work necessary to advance the Rule of Law in China is yet to be done. This is particularly the case as it relates to deterring accidents and compensating injuries. The Rule of Law is concerned with much more than the substantive terms of legal provisions. As such, China must develop the institutional practices that will bring to fruition the promise of the new Tort Law. In part, this will entail the proper selection, retention, and protection of judges. It will also depend on whether persons have access to the justice system, either through competent counsel or …

Virginia Should Abolish The Archaic Tort Defense Of Contributory Negligence And Adopt A Comparative Negligence Defense In Its Place, Peter N. Swisher

Law Faculty Publications

The purpose of this essay is to argue that the time has now come for Virginia, by judicial or legislative action, to abolish its archaic common law tort defense of contributory negligence and replace it with a comparative negligence defense. Adopting a comparative negligence defense would more equitably and more fairly recognize and apportion damages according to the bedrock underlying tort legal principles of accountability, deterrence, and distribution of loss.

Medical Malpractice Mediation: Benefits Gained, Opportunities Lost, Carol B. Liebman

Faculty Scholarship

In the past decade, the United States healthcare system has begun to use mediation to facilitate communication between patients and physicians after an adverse medical event, to ease tensions among members of care-giving teams, to resolve medical malpractice claims, and to help family members and medical professionals make awesome and wrenching decisions at the end of life. Implementation of the Patient Protection and Affordable Care Act of 2010 will produce new controversies and increase the need for mediation. Patients, families, physicians, nurses, other healthcare professionals, and administrators will require help managing the disagreements that arise as they adapt to the …

Ethical Intersections & The Federal Tort Claims Act: An Approach For Government Attorneys, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

This article suggests an ethical approach for government attorneys to follow when making decisions in the special context of the Federal Tort Claims Act. It reviews the history and purpose of the FTCA, the Judgment Fund, and the Westfall Act. It examines the swirl of competing interests that arise from the structure of the FTCA, the many defenses it provides, the deep pocket it grants successful claimants, the complete immunity it grants some tortfeasors, and the methods Congress chose for paying its settlements and judgments. It touches on the ethical obligations of government attorneys. It suggests that government attorneys responsible …

Is Public Nuisance A Tort?, Thomas W. Merrill

Faculty Scholarship

Public nuisance has recently been dusted off as a potential source of legal redress for tobacco use, handgun distribution, lead paint removal, MTBE contamination, and global warming. The premise of this litigation is that public nuisance is a tort, and that courts have inherent authority as common law tribunals to determine what conditions qualify as a public nuisance. This article argues that public nuisance is properly regarded as a public action rather than a tort, as revealed by a number of its features, including the nature of the interest protected – rights common to the general public – and the …

Anand V. Kapoor, David Pepper

NYLS Law Review

No abstract provided.

Harry Potter And The Trouble With Tort Theory, Scott Hershovitz

Articles

Economists argue that tort law promotes an efficient allocation of resources to safety, while philosophers contend that it dispenses corrective justice. Despite the divide, the leading tort theories share something in common: they are grounded in an unduly narrow view of tort. Both economists and philosophers confuse the institution of tort law with the rules that are distinctive of it. They offer theories of tort's substantive rules, but for the most part ignore the procedures by which those rules are implemented. As a consequence, both miss and misconstrue much about tort law. The problem is particularly acute for economists. They …