Torts Commons^™

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 …

Removing Statistical Discrimination In Personal Injury And Wrongful Death Compensation In Rhode Island Wrongful Death Compensation In Rhode, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

The Need For Fentanyl-Specific Drug Education In Schools, Emma Guggenheimer

Cardozo Journal of Equal Rights & Social Justice

The note advocates for the implementation of state legislation requiring fentanyl-specific drug education in K-12 schools to combat the escalating opioid epidemic, particularly among teenagers. It emphasizes the critical role of schools in providing comprehensive education to raise awareness about the dangers of fentanyl and prevent overdose deaths. The proposal includes mandates for fentanyl-awareness campaigns, updated curricula, and the use of tools like fentanyl test strips and naloxone in schools.

The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll

Reviews

By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the …

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam

Brooklyn Law Review

Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …

Impaired, In Pairs, Cristina Carmody Tilley

Faculty Publications

Rape, like many other one-on-one aggressions, can be treated as both a crime and a tort. But neither body of law responds effectively to these aggressions. Criminal rape prosecution is notoriously difficult, and civil rape suits are notoriously rare. Today, as private law theorists have begun to study tort’s potential to drive social justice on issues of race, gender, and class, it is an ideal time to reassess the terms of civil liability for intimate injury. Culture has long limited “real rape” to premeditated, stranger-on-stranger, aggression. Consequently, tort has long categorized what this Essay terms “non-collaborative sex” as an intentional …

A New Private Law Of Policing, Cristina Carmody Tilley

Faculty Publications

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Torts And Personhood, Melissa Mortazavi

Arkansas Law Review

Perhaps more so than ever, legal personhood is contested. Part I of this Article lays out an overview of existing tort theories exposing the limitations of existing paradigms. This positions the reader to consider in Part II the core assertion of this paper: that a fundamental role of torts is to define personhood. As such, it explores the idea that a principal project that each tort case and litigant is engaged with is not truly about money, property, or even pain per se—it is about determining who is seen.

Tort Liability And Unawareness, Surajeet Chakravarty, David Kelsey, Joshua C. Teitelbaum

Georgetown Law Faculty Publications and Other Works

We explore the implications of unawareness for tort law. We study cases where injurers and victims initially are unaware that some acts can yield harmful consequences, or that some acts or harmful consequences are even possible, but later become aware. Following Karni and Vierø (2013), we model unawareness by Reverse Bayesianism. We compare the two basic liability rules of Anglo-American tort law, negligence and strict liability, and argue that negligence has an important advantage over strict liability in a world with unawareness—negligence, through the stipulation of due care standards, spreads awareness about the updated probability of harm.

The Physical-Emotional Distinction In Tort, Philip Petrov

Faculty Scholarship

Several legal scholars have recently argued that U.S. tort law’s physical-emotional distinction commits tort to the objectionable position of mind-body dualism, but they have not considered the distinction’s role as an aid to judicial cognition and decision-making. Drawing primarily on the law of negligent infliction of emotional distress, this essay argues that tort’s physical-emotional distinction is not a relic of mind-body dualism but a heuristic that judges have used to structure and simplify the difficult but unavoidable task of drawing lines between legally cognizable and non-cognizable harm. The analysis has at least three normative implications: (1) users of tort’s physical-emotional …

Destined To Deceive: The Need To Regulate Deepfakes With A Foreseeable Harm Standard, Matthew D. Weiner

Michigan Law Review

Political campaigns have always attracted significant attention, and politicians have often been the subjects of controversial—even outlandish—discourse. In the last several years, however, the risk of deception has drastically increased due to the rise of “deepfakes.” Now, practically anyone can make audiovisual media that are both highly believable and highly damaging to a candidate. The threat deepfakes pose to our elections has prompted several states and Congress to seek legislative remedies that ensure recourse for victims and hold bad actors liable. These recent attempts at deepfake laws are open to attack from two different loci. First, there is a question …

Wearable Ai, Bystander Notice, And The Question Of Privacy Frictions, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

With the rapid advancement of Artificial Intelligence (“AI”) technology and the widespread availability of large language models (“LLMs”), wearable AI devices and designs for new hardware have surged like never before. While wearable AI was traditionally marketed for health and fitness purposes, many of the emerging products are multifunctional. These features can jeopardize the privacy of bystanders in addition to the consumers. Product designers are thus facing a dilemma: ensuring third-party privacy or guaranteeing convenience and a user-friendly design. This Article argues for mandating “privacy frictions” to function as both bystander notice and consent for wearable AI devices with audiovisual …

America’S “Kia Boys”: The Problem, Responses, And Recommendations, Drew Thornley

Seattle University Law Review Online

The landscape of automobile theft in the United States has undergone a dramatic transformation, marked by a notable surge in the theft of Kia and Hyundai vehicles. Once regarded as a routine occurrence, car thefts have taken on a novel dimension, propelled by a phenomenon driven by digital culture and social media virality. The thefts of these specific car brands have evolved into what is now widely recognized as the "Kia Challenge," a term echoing across popular platforms like TikTok. In this challenge, young teenage individuals, often referred to as the "Kia Boys" or variations thereof, orchestrate daring car heists, …

When Originalism Failed: Lessons From Tort Law, Donald G. Gifford, Richard C. Boldt, Christopher J. Robinette

Faculty Scholarship

Two recent Supreme Court decisions upended American life. Opinions released on consecutive days in June 2022 overturned the right of reproductive choice nationwide and invalidated a statute regulating the carrying of concealed weapons in New York. The opinions were united by a common methodology. Pursuant to what one scholar terms “thick” originalism, history, as told by the majority, dictated the resolution of constitutional disputes.

This Article explores the use of thick originalism in several celebrated torts cases that raised constitutional issues. These cases illustrate two significant kinds of problems associated with a rigid historical approach to constitutional interpretation. The first …

Renewing Products Liability With Semen, Anita Bernstein

Faculty Scholarship

No abstract provided.

State Of Confusion: Underinsured Motorist Coverage In Pennsylvania And The Opportunity To Get It Right, Logan Bennett

Duquesne Law Review

Automobiles play a critical role in modern society. While many opt for alternative modes of transportation-for example public transportation, walking, and biking-the automobile remains the most popular method in America.² Despite the obvious convenience of a personal vehicle, car accidents are a foreseeable but unfortunate consequence of driving. There are an average of six million car accidents in the United States each year.³ In Pennsylvania alone, there were over 115,000 car accidents reported in 2022, with the most common vehicle type involved being passenger cars.⁴

Punitive Damages As A Deterrent To Distracted Driving: Where The Statutory Penalties Fall Short, The Supreme Court Of Pennsylvania Must Fill The Gap, Abagail Hudock

Duquesne Law Review

Punitive damages have always been one of the more controversial remedies available for tort harms.¹ While a minority of states prohibit punitive damages altogether,² the majority of jurisdictions embrace them not only as a means of punishment on those tortfeasors who commit especially heinous, callous, or irresponsible acts, but also as a deterrent to others from committing such conduct.³ They function, therefore, as a societal protection against behavior that poses a great risk to the public that criminal penalties and compensatory damage awards might not be able to prevent or attenuate on their own.

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …