Torts Commons^™

After Affirmative Action, Meera E. Deo

Seattle University Law Review

This is a time of crisis in legal education. In truth, we are in the midst of several crises. We are emerging from the COVID pandemic, a period of unprecedented upheaval where law students and law faculty alike struggled through physical challenges, mental health burdens, and decreased academic and professional success. The past few years also have seen a precipitous drop in applications to and enrollment in legal education. Simultaneously, students have been burdened with the skyrocketing costs of attending law school, taking on unmanageable levels of debt. And with the Supreme Court decision in SFFA v. Harvard, we are …

Going Forward: The Role Of Affirmative Action, Race, And Diversity In University Admissions And The Broader Construction Of Society, Steven W. Bender

Seattle University Law Review

The third annual EPOCH symposium, a partnership between the Seattle University Law Review and the Black Law Student Association took place in late summer 2023 at the Seattle University School of Law. It was intended to uplift and amplify Black voices and ideas, and those of allies in the legal community. Prompted by the swell of public outcry surrounding ongoing police violence against the Black community, the EPOCH partnership marked a commitment to antiracism imperatives and effectuating change for the Black community. The published symposium in this volume encompasses some, but not all, the ideas and vision detailed in the …

The Sffa V. Harvard Trojan Horse Admissions Lawsuit, Kimberly West-Faulcon

Seattle University Law Review

Affirmative-action-hostile admissions lawsuits are modern Trojan horses. The SFFA v. Harvard/UNC case—Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, et. al., decided jointly—is the most effective Trojan horse admissions lawsuit to date. Constructed to have the distractingly appealing exterior façade of a lawsuit seeking greater fairness in college admissions, the SFFA v. Harvard/UNC case is best understood as a deception-driven battle tactic used by forces waging a multi-decade war against the major legislative victories of America’s Civil Rights Movement, specifically Title VI and Title VII …

Feeding The Good Fire: Paths To Facilitate Native-Led Fire Management On Federal Lands, Kevin Burdet

Seattle University Law Review

In 2003, nearly twenty Native American reservations were devastated by wildfires that originated on adjacent federal lands. The San Pasqual Reservation’s entire 1,400 acres were burned along with over a third of its homes, and seventy-five percent of the Rincon Reservation was burned, taking twenty homes with it. These devastating fires, along with others in 2002, brought about the Tribal Forest Protection Act of 2004 (TFPA), which offered hope for Tribes to propose projects on bordering or adjacent federal lands and protect reservation lands in the process. Unfortunately, twenty years later, the TFPA has had a marginal effect in enabling …

The First Amendment To The Constitution, Associational Freedom, And The Future Of The Country: Alabama’S Direct Attack On The Existence Of The Naacp, Helen J. Knowles-Gardner

Seattle University Law Review

Sixty years ago, on Wednesday, April 8, 1964, Professor Harry Kalven, Jr., gave the second of three lectures at The Ohio State University College of Law Forum. These lectures were published two years later in a book entitled The Negro & the 1st Amendment. In the second lecture, Kalven distinguished between direct and indirect threats to the associational freedom of the National Association for the Advancement of Colored People (NAACP). Kalven categorized the 1958 decision in NAACP v. Alabama ex rel. Patterson as an indirect effort to control the NAACP.

With the benefit of material obtained from numerous archival sources, …

What Is In Your Tampon? Increasing Transparency In Menstrual Products, Elianna Spitzer

Seattle University Law Review

The average person who menstruates will bleed for an average of five days, every twenty-four to thirty-eight days, over several decades and could use thousands of disposable menstrual products in their lifetime. Menstrual products line retail shelves. They can be found in homes, bags, and bodies—but until 2021, manufacturers were not required to disclose the ingredients used to make these products to consumers at all. In fact, they still are not federally required to disclose menstrual product ingredients on product packaging. Instead, in recent years, changes to menstrual product labels have largely been the result of state legislation. In 2019, …

Due Process Shaped By The Present Instead Of The Past: The Needed Reinvigoration Of A Lawrence Vision Of Due Process, Azor Cole

Seattle University Law Review

The recognition of unenumerated rights, rights implied from the text of the constitution, is a political battlefield waged through law with profound implications for all Americans. Generally, there have been two prongs for an inquiry into an unenumerated constitutional right under the Fourteenth Amendment. One is to ask whether the right to be found is objectively deeply rooted in this Nation’s history and tradition. The other is to ask whether the right to be found is fundamental to this Nation’s scheme of ordered liberty. The current Supreme Court has effectively done away with this present-day liberty analysis, saying it is …

Sneakers, The Shoes That Talk The Talk And Walk The Walk: How Jack Daniel’S Properties, Inc. V. Vip Products Left Its Footprint On Trademark Law And The Sneaker Industry, Nitya Tolani

Seattle University Law Review

As the fashion industry—including the sneaker industry housed within it—continues to go through the motions of collectively flocking out, and then collectively flocking again to the newest innovations in the world of wearables, the landscape of laws to protect and promote those innovations expands as well, mainly in the area of intellectual property law. Although copyright, trademark, and patent law can cover innovations in the fashion industry, this Note centers its analysis on trademark law. Trademark law has been through notable change in recent years because of the United States Supreme Court’s 2023 decision in Jack Daniel’s Properties, Inc. v. …

Prejudice Standards In Washington’S Appellate Courts, Andrew B. Van Winkle

Seattle University Law Review

When an appellate court finds an error to have occurred during a proceeding, the error is not yet subject to correction. In order to merit a remedy, the error must have been sufficiently prejudicial to the aggrieved party’s case. Drawing the line between correctable and non-correctable errors is not an easy task, for it often requires guessing at what was in the minds of jurors and trial judges. To cope with this task, courts have devised various rules and tests for deciding whether an error was likely prejudicial or not. These standards often go by names such as “harmless error,” …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

A Tort For The Digital Age: False Light Invasion Of Privacy Reconsidered, John C.P. Goldberg, Benjamin C. Zipursky

Faculty Scholarship

In his famous 1960 article, William Prosser identified four privacy torts: Disclosure of Private Facts, False Light Invasion of Privacy, Appropriation of Likeness, and Intrusion Upon Seclusion. Although each was recognized in the Second Torts Restatement and by various courts, the false light tort seems to have foundered. Indeed, starting in the late 1980s, prominent courts rejected it and many academics have expressed grave misgivings about it. Often interpreted as a kind of ‘defamation lite,’ the tort seems to its critics an ill-defined wrong that clever lawyers invoke to evade important limitations on defamation liability.

Drawing from case law and …

Cultural Loss In The Context Of Indian Residential School Litigation: Exploring The Role Of Tort Law As A Tool For Transformative Reparations, James Plunkett

Lewis & Clark Law Review

The issue of restitution for sexual and physical abuse of survivors of Indian residential schools has gained litigative traction, leaving the issue of reparations for cultural loss in the shadows. This Comment explores the idea of a new tort of cultural loss to more holistically address the systematized harm experienced by Aboriginal children forced into residential schools in Canada. Based on the qualitative experiences of survivors of residential schools, this Comment suggests a taxonomy of cultural loss that may further inform efforts to use tort law as a vehicle for reparative justice. Ultimately, this tort theory demands further inquiry and …

Premier Land Dev. V. Kishfy, 287 A.3d 19 (R.I. 2023)., Samantha Rhodes

Roger Williams University Law Review

No abstract provided.

Anti-Patents, Roy Baharad, Stuart Minor Benjamin, Ehud Gutte

Faculty Scholarship

Conventional wisdom has long perceived the patent and tort systems as separate legal entities, each tasked with a starkly different mission. Patent law rewards novel ideas; tort law deters harmful conduct. Against this backdrop, this Essay uncovers the opposing effects of patent and tort law on innovation, introducing the "injurer-innovator problem." Patent law incentivizes injurers --often uniquely positioned to make technological breakthroughs--by allowing them to profit from licensing their inventions to competitors. Yet tort law, by imposing liability for failures to invest in care, forces injurers to incur the cost of implementing their own innovations. When the cost of self-implementation …

Engaging With Professor Twerski In The Choice Of Law Revolution, Robert A. Sedler

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Situating Bystanders Within Strict Products Liability, Mark A. Geistfeld

Brooklyn Journal of Corporate, Financial & Commercial Law

"The largely neglected role of bystanders within products liability is reflected in the extensive scholarship of Professor Aaron Twerski—the rightly celebrated honoree of this symposium. Within Twerski’s vast body of impressive publications, his limited discussions of bystanders align with the widely held assumption that, aside from the problems they pose for the consumer expectations test, bystanders do not merit much attention within the context of products liability. Bystander injuries are much more important than is commonly recognized; one must focus on them to adequately identify the conditions under which consumer-choice doctrines properly limit tort liability. Because the varied rules of …

In The Duty Wars, I'M Switzerland, W. Bradley Wendel

Brooklyn Journal of Corporate, Financial & Commercial Law

The “duty wars” have been raging among tort scholars for some time, sparked by the Third Restatement’s deflationary approach to the duty element of the negligence cause of action. Defenders of the traditional approach to duty insist that it is necessary to ensure that tort law stays on the right side of the boundary between public and private law insofar as the negligence tort recognizes a relational conception of rights owed among individuals. The worry is that negligence shorn of the duty element becomes an instrument of efficiency or deterrence rather than recognizing obligations. Relatedly, the approach pioneered by the …

Expert Evidence: The Gatekeeper Role Of Justice, Victor E. Schwartz

Brooklyn Journal of Corporate, Financial & Commercial Law

No abstract provided.

Enterprise, Liability, And Insolvency: An Essay In Honor Of Aaron Twerski, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

Modern tort law links concepts of duty, duty of care, causation, and compensatory damages in a manner that, it is hoped, simultaneously communicates moral suasion, redresses wrongs, and incentivizes “reasonable” socially appropriate behavior. Deterrence and corrective justice differ fiercely about the scope of and rationale for liability, but both assume that tortfeasors are good for their debts (or at least insured). This is not always the case. Sometimes, debtors are insolvent. Bankruptcy law provides individuals with a route to a fresh start, and this paper considers the relationship between modern tort law and the discharge of debt in bankruptcy. The …

Aaron Twerski — Practical Wisdom At Ground Zero, Anthony J. Sebok

Brooklyn Journal of Corporate, Financial & Commercial Law

This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …