Torts Commons^™

A Rule Without A Reason: Determining The Capacity For Negligence Of A Person With Mental Illness, Alex Geisinger, David Dematteo, Kellie Wiltsie, Chelsea Jackson

William & Mary Law Review

Since the pandemic, the impacts of structural bias on racial minorities and other groups have become an even more compelling concern for legal commentators. One group that has received some attention in the effort to confront bias is the mentally ill. This attention has coincided with a rise in the willingness of individuals to talk about, and destigmatize, mental health issues in society. Yet, despite these efforts, along with a long and well-established body of scholarship that criticizes its treatment of mental illness, the civil law—particularly the law of tort—continues its entrenched refusal to consider mental illness when determining the …

Bridging The False Certification Gap: Why “Resulting From” In The 2010 Aks Amendment Requires But-For Causation, Alexandra Wildman

Fordham Law Review

Before 2010, violators of the Anti-Kickback Statute (AKS) could avoid False Claims Act (FCA) liability if claims for items or services borne of their kickback scheme were submitted to federal healthcare programs by a third party. In 2010, as part of the Affordable Care Act (ACA), Congress attempted to close this loophole in the FCA by amending the AKS. Under the amendment’s terms, claims submitted to federal healthcare programs for items or services “resulting from” an AKS scheme are false for the purposes of establishing FCA liability, regardless of who submitted the claims.

Although the amendment widened the FCA liability …

A Social Status Theory Of Defamation Law, Yonathan A. Arbel

Articles

Despite deep inequality in social status and social capital in American society, legal scholarship has done relatively little to understand the structures that produce status and maintain its distribution. The Article argues that defamation law plays such a role. The orthodox view is that defamation law's goal is to protect dignity. This view was expressed in a famous Supreme Court holding in 1966, which held that defamation law is necessary to protect "the essential dignity" of "every human being. " The later seminal work of Robert Post cemented it. Seemingly unrelated, scholars of defamation law have found its structure mystifying, …

Toxic Discretion: Environmental Inequality And The Discretionary Function Exception, Sarah E. Barritt

Notre Dame Law Review Reflection

Environmental racism is far reaching and insidious, and each of these devastating instances and the institutional factors that led to them could and should be the subject of entire books in their own right. The EPA and other agencies of the United States government are complicit in multiple ways, not least of all through their abject failures to properly regulate private industry pollution in BIPOC communities. However, this Note has cabined its analysis to the government’s failure to warn these communities of environmental contamination, and what happens when it hides behind the discretionary function exception in ensuing litigation. To provide …

Resolving Land Use Conflicts Without Zoning, Noah Austin

Notre Dame Law Review Reflection

This Note presumes the rise of mixed-use development, upzoning, and other deregulatory zoning schemes. It sets aside the question of whether the costs of exclusionary zoning outweigh its benefits to society. And it characterizes the return-of-nuisance problem as something to be mitigated while pursuing land use deregulation, not as a cause for slowing that deregulation.

To this end, this Note offers three possible solutions towards mitigating conflicts between competing land uses in deregulated regimes. This Note contends that where today’s deregulated developments do generate conflicts between conflicting use types, society would reap net benefit by weakening judicial protection of nuisance …

University Of The District Of Columbia Law Review, University Of The District Of Columbia Law Review

University of the District of Columbia Law Review

No abstract provided.

Keabsahan Dan Eksekusi Invoice Sebagai Jaminan Pembiayaan Pada Produk Digital Lending Pt Pegadaian, Josephine Felicia Putri Bramanto -, Abdul Salam

Lex Patrimonium

This thesis analyzes the validity and execution of invoices as collateral for financing digital lending products offered by PT Pegadaian in the event of default or fictitious invoices based on doctrinal research methods and supported by the results of interviews with PT Pegadaian. In 2020, PT Pegadaian launched a digital lending-based Productive Capital Loan product with invoice guarantees. Through this product, MSME players who want to get a business capital loan can apply for a loan secured by an online debt collection letter (invoice), which is then charged with a fiduciary guarantee. An invoice is basically a document that proves …

Akibat Hukum Perjanjian Lisensi Terhadap Pihak Ketiga Yang Berindikasi Pada Perbuatan Melawan Hukum Ditinjau Dari Segi Keperdataan (Analisis Putusan Nomor 4/Pdt.Sus-Hki/2019/Pn.Smg Jo. Putusan Nomor 882.K/Pdt.Sus-Hki/2019), Putti Zahra Dwi Athifah Wilyadi

Lex Patrimonium

This legal research aims to analyze the validity of a license agreement that has legal implications for third parties, which can lead to unlawful acts. An agreement that should provide benefits to the parties bound by the agreement can cause losses in its implementation. Meanwhile, the loss is caused by a third party for unlawful acts. With the enactment of Law Number 28 of 2014 concerning Copyright ("UUHC 2014"), the parties bound in the license agreement can be better protected, coupled with the enactment of the implementing regulations of the regulation in Government Regulation of the Republic of Indonesia Number …

Analisis Penyelesaian Sengketa Konstruksi Akibat Wanprestasi Dalam Perjanjian Jasa Konstruksi Ditinjau Dari Hukum Perdata, Mayangsari Nurul Imani, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

This research analyzes how dispute resolution efforts can be made in the event of a construction dispute due to default committed by a party in a construction service agreement. This research is prepared using a doctrinal research method. The author describes and analyses three problems in this research, namely the factors that cause construction disputes based on the provisions in the construction service agreement, efforts to resolve construction disputes due to default by the parties in the construction service agreement, and the court's opinion in resolving construction disputes in Case No. 692/Pdt.G/2019/PN.Jkt.Utr. The results show that construction disputes usually occur …

Analisis Perbedaan Prinsip Kesalahan Dan Implikasinya Terhadap Tanggung Jawab Dalam Perbuatan Melawan Hukum: Studi Komparatif Antara Hukum Indonesia Dan Hukum Inggris, Muhammad Ihsan Abdurrahman, Prof. Dr. Rosa Agustina, S.H.,M.H

Lex Patrimonium

Indonesian law, originating from the Dutch law, includes the lawsuit for Perbuatan Melawan Hukum or PMH, which originates from onrechtmatige daad in the Netherlands. Despite undergoing developments, PMH in Indonesia still focuses on compensation for parties experiencing losses, in contrast to the concept of the Law of Torts in England, which aims not only to provide compensation but also to prevent future trots and deter perpetrators. A notable difference lies in the consideration of the perpetrator's intention, where PMH in Indonesia does not take intention into account, while the Law of Torts in United Kingdom incorporates the perpetrator's intention as …

Johnson & Johnson’S Dance With Bad Faith: A Look At How Large Corporations Utilize The Bankruptcy Code To Avoid Liability From Mass Tort Claims, Amy West

Brooklyn Journal of Corporate, Financial & Commercial Law

Since Congress enacted the current Bankruptcy Code in 1978, large corporations have strategically used bankruptcy law to evade liability in mass tort claims. This Note examines three case studies illustrating such attempts. The first case involves Johnson & Johnson, which tried to use the so-called “Texas Two-Step” maneuver to circumvent liability for 38,000 pending talc-related lawsuits linked to injuries caused by its well-known Baby Powder. The second case is the Purdue Pharma bankruptcy. Purdue Pharma, the pharmaceutical manufacturer responsible for creating OxyContin, faces thousands of claims for strict liability, negligence, and failure to warn. The issue here is whether the …

Regulatory Takings In Climate Change: Geo- Engineering One’S Way Around The Fifth Amendment, Noah Chase

Fordham Environmental Law Review

Picture yourself as the owner of a small business located in the downtown area of a large city; your business consists of a shop and an adjoining parking lot. A new regulation has just been passed which requires any owner of property within the city limits to paint all roofs and parking areas with a new reflective coating, in order to reduce the heat which is absorbed by such structures. The idea of closing your business down for this time, along with other connected issues, scares you, and you begin to wonder if your local government truly has your best …

Arizona V. Navajo Nation And Systemic Failures In The Tribal Water Allocation Scheme, Jennifer Horkovich

Fordham Environmental Law Review

When the United States Supreme Court’s decision in Arizona v. Navajo Nation was published in June 2023, Indian Country was hardly surprised with the Court’s ruling. There, the Court found that the United States had no affirmative duty to affirmatively protect the Navajo Nation’s water rights under the 1868 Treaty.1 The Court was clear: the treaty is insufficient for the Navajo’s current water needs, but the judiciary is unable to step in to find relief.2 This decision is another in a long series of cases on water allocation and the federal reserved water right, where tribes have been unable to …

Environmental Protection, Sustainability And The Prevention Of Satellite Collisions In Outer Space, Yun Zhao

Fordham Environmental Law Review

With space commercialization and privatization continuing apace, more space objects are expected to be launched and put into operation in the future, adding to the already large number of defunct satellites and space debris present in outer space. Hence, serious study should be devoted to possible mechanisms for dealing with potential collisions in outer space for the purpose of realizing environmental protection and space sustainability. In view of the inadequacy of the existing legal regime, this article explores possible such mechanisms (including a preventive mechanism, avoidance mechanism and compensation mechanism) from the perspective of interdependence theory and puts forward a …

Liability For Use Of Artificial Intelligence In Medicine, Nicholson W. Price Ii, Sara Gerke, I. Glenn Cohen

Book Chapters

While artificial intelligence (AI) has substantial potential to improve medical practice, errors will certainly occur, sometimes resulting in injury. Who will be liable? Questions of liability for AI-related injury raise not only immediate concerns for potentially liable parties but also broader systemic questions about how AI will be developed and adopted. The landscape of liability is complex, involving healthcare providers and institutions and the developers of AI systems. In this chapter, we consider these three principal loci of liability. At the outset, we note a few issues that shape our analysis.

A Global Puzzle: Integrating Iot Jurisprudential Approaches, Colin Savino

Pace International Law Review

While devices in the Internet of Things (hereinafter “IoT”) such as smart appliances, smart watches, and pacemakers are intended to make life easier and safer, they sometimes complicate users’ lives with system failures and expose them to new risks instead. Users suffer the risks stemming from hastily developed cybersecurity in IoT devices, sometimes with serious consequences and without recourse against manufacturers or cybercriminals. Cybercriminals’ ability to exploit gaps in cybersecurity from anywhere makes the IoT especially risk-prone to transnational crime and may make tort claims against multinational manufacturers tenuous on issues of causation and actual harm suffered. Most problematically, the …

Regulating Forever?: The Epa's Goal To Remediate Forever Chemicals Already In The Environment Under The Safe Drinking Water Act, Anna Donaldson

UMKC Law Review

No abstract provided.

Reckless Parties Should Foot The Bill: Advocating For State Agency Search And Rescue Service Reimbursement, Anna Vanbuskirk

UMKC Law Review

No abstract provided.

A (Not-So) “Minor” Application Of The “Spousal Standing” Exception To Georgia’S Wrongful Death Act, Kelly N. Lafleur

Mercer Law Review

The death of a loved one is a tragedy, especially when allegations of wrongdoing exist surrounding the death, and the decision to bring a lawsuit is a deeply personal matter. But who bears the burden of making that decision—the deceased’s spouse, their child, or another loved one? The answer may depend on the court’s application of equitable principles to preserve the claim.

Georgia’s Wrongful Death Act grants a decedent’s surviving spouse the right to pursue a wrongful death claim. In the event there is no surviving spouse, that right is granted to the decedent’s “child or children, either minor or …

Data Privacy By Contract, Ifeoma Ajunwa, Austin Kamer

Cardozo Law Review

Protecting consumer privacy rights presents a particular challenge given the prevalence of data breaches. This Article notes that current law is woefully inadequate in protecting the privacy rights of consumers. Notably, the law fails in the following four areas: (1) classification of consumer data, (2) lack of a comprehensive approach, (3) after-the-fact focus, and (4) limited accountability for third parties. Although it may be impossible to eliminate all data breaches, more regulations can bolster protection without restricting technological advancements. This Article proposes a contractual approach to privacy protection for consumers. It argues that the creation of mandatory implied contractual terms …