Torts Commons^™

Analog Analogies: Intel V. Hamidi And The Future Of Trespass To Chattels, Maureen E. Brady, James Y. Stern

Faculty Publications

A symposium on great torts cases of the twenty-first century must include Intel Corp. v. Hamidi, the canonical case about whether unwanted e-mail spam sent to a company’s server could give rise to a trespass to chattels claim. While much has been written about Intel, in this Essay, we argue that Intel is as much of a classic for what it reveals about the old-fashioned tort as it is for its more closely examined ruling on “cybertrespass.” The dueling personal property analogies chosen by the majority and dissenting opinions in Intel reveal basic and fundamental disagreements about what …

Destroying Defamation, Leslie Y. Garfield Tenzer

Elisabeth Haub School of Law Faculty Publications

Fake News is destroying defamation. The recent proliferation of rushed journalism, online conspiracy theories that almost every news story is, in fact, “Fake News,” have created a desert of veracity. Widespread public skepticism about even the most mainstream Internet reporting means plaintiffs will have difficulty convincing jurors that third parties believed any reported statement to be true. Without such proof, it is almost impossible for a plaintiff to prove the elements of defamation.

To establish defamation, a plaintiff must show defendant published an assertion of fact that is false and damages the plaintiff's reputation Hyperbolic language or other indications that …

Caesar’S Gambit: Coherence, Justification Of Legal Rules, And The Duty Test: Towards An Interactional Theory Of Government Liability For Negligence In Disaster Management, Irehobhude O. Iyioha

Dalhousie Law Journal

This article examines barriers posed by the duty of care test for government liability for negligence in disaster management. It argues that various aspects of the test raise concerns about coherence, legitimacy of judicial decision-making, and ultimately how we justify liability in tort law. In examining the coherence of the duty test through multiple prisms, including through theoretical justifications for tort principles, this article contends that the duty test, in its framing and interpretations, fails to meet the formal and substantive demands of coherence, correctness and legitimacy. Arguing that justificatory theories offer necessary theoretical lenses through which to understand, critique, …

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Connecticut’S Crumbling Foundations: Legal Remedies And Legislative Responses, Jacqueline T. Bashaw

Connecticut Law Review

Latent harms pose unique challenges for the legal system. Such issues are often referred to as long-tail issues, wherein the actual harmful chain of events is set in motion years before it is discovered and wreaks havoc. Asbestos is one example. Pyrrhotite is another.

A seemingly innocuous mineral, pyrrhotite has infiltrated Connecticut homes. Somewhere between 3,000 to 35,000 concrete foundations were poured in the state from 1983 to 2016, with varying amounts of pyrrhotite trapped within. These foundations have begun to deteriorate, costing homeowners thousands of dollars as their investments quite literally crumble beneath their feet. While the problem was …

Internet Jurisdiction And The 21st Century: Zippo, Calder, And The Metaverse, Gretchen Yelmini

Connecticut Law Review

Internet use in the United States continues to increase at a rate that outpaces the legal system. From reliance on outdated precedent, differing long-arm statutes, and emergent technologies, there are unanswered questions of whether existing precedent is sufficient to handle our increasingly borderless society.

Many courts still rely on the Zippo test despite the exponential advancements in how we use the internet in the twenty-five years since the Western District of Pennsylvania developed a framework for this issue. The Supreme Court has continued to avoid directly addressing the issue. In 2014, the Court left decisions on virtual presence to “another …

The Credibility Effect: Defamation Law And Audiences, Yonathan A. Arbel

Articles

What should be the legal response to false statements? In the context of defamation law, courts try to set a standard that balances the interests of speakers and their potential targets. This article empirically demonstrates an unappreciated effect of such decisions on third parties: a credibility effect. Using a series of lab experiments, I find that defamation law makes individuals more trusting of reports from various media. This credibility effect is desirable when the report is true but can lead to unintended consequences in the case of misinformation. In particular, the credibility effect is shown to cast a stigma on …

The Nil Glass Ceiling, Tan Boston

University of Richmond Law Review

Name, image, and likeness (“NIL”) produced nearly $1 billion in earnings for intercollegiate athletes in its inaugural year. Analysts argue that the shockingly high totals result from disproportionate
institutional support for revenue-generating sports.

Although NIL earnings have soared upwards of eight figures to date, first-year data reveals that significant gender disparities exist. Such disparities raise Title IX concerns, which this Article illustrates using a hypothetical university and NIL collective. As such, this Article reveals how schools can facilitate gender discrimination through NIL collectives, contrary to Title IX. Although plainly applicable to NIL transactions in which schools are involved, Title IX’s …

Disinformation And The Defamation Renaissance: A Misleading Promise Of “Truth”, Lili Levi

University of Richmond Law Review

Today, defamation litigation is experiencing a renaissance, with progressives and conservatives, public officials and celebrities, corporations and high school students all heading to the courthouse to use libel lawsuits as a social and political fix. Many of these suits reflect a powerful new rhetoric—reframing the goal of defamation law as fighting disinformation. Appeals to the need to combat falsity in public discourse have fueled efforts to reverse the Supreme Court’s press–protective constitutional limits on defamation law under the New York Times v. Sullivan framework. The anti–disinformation frame could tip the scales and generate a majority on the Court to dismantle …

Inventing Deportation Arrests, Lindsay Nash

Articles

At the dawn of the federal deportation system, the nation’s top immigration official proclaimed the power to authorize deportation arrests “an extraordinary one” to vest in administrative officers. He reassured the nation that this immense power—then wielded by a cabinet secretary, the only executive officer empowered to authorize these arrests—was exercised with “great care and deliberation.” A century later, this extraordinary power is legally trivial and systemically exercised by low-level enforcement officers alone. Consequently, thousands of these officers—the police and jailors of the immigration system— now have the power to solely determine whether deportation arrests are justified and, therefore, whether …

Experiments In Legal Hybridity: From Indian Tort Law To Tribal Tort Law, Noah T. Allaire

Tribal Law Journal

Tort law is a broad set of rules designed to compensate people who have suffered injuries and harm by imposing penalties on those who caused the resulting injuries and harm. Indian tort law is the limited set of rules that the United States imposed upon tribal nations over a century ago. Today, tribal courts have the important opportunity and responsibility to articulate tribal tort law. Tribal legislatures, in turn, can codify tribal tort rules to guide future judicial decisionmaking. Through this process, tribal tort law will gradually supplant Indian tort law. Articulating tribal tort law necessarily involves conducting experiments in …

Defamation With Bayesian Audiences, Yonathan Arbel, Murat C. Mungan

Articles

How strictly should the law regulate false defamatory statements? We first show that the presence of judicial errors often puts defamation law on a Laffer curve: regulation that is too lax or too strict is inferior to moderate regulation. While moderate regulation is ideal, it is not always attainable because of practical and legal constraints. With these constraints, we consider a Bayesian audience that takes the strictness of defamation law into account when evaluating statements. The optimal standard is then taxer than is prescribed by standard models with naive audiences. These findings underscore the importance of accounting for audience effects …

Telegraph Torts: The Lost Lineage Of The Public Service Corporation, Evelyn Atkinson

Michigan Law Review

At the turn of the twentieth century, state courts were roiled by claims against telegraph corporations for mental anguish resulting from the failure to deliver telegrams involving the death or injury of a family member. Although these “telegraph cases” at first may seem a bizarre outlier, they in fact reveal an important and understudied moment of transformation in the nature of the relationship between the corporation and the public: the role of affective relations in the development of the category of the public utility corporation. Even as powerful corporations were recast as private, rights-bearing, profit-making market actors in constitutional law, …

Clicking Away Consent: Establishing Accountability And Liability Apportionment In Direct-To-Consumer Healthcare Artificial Intelligence, Stephanie L. Lee

Brooklyn Law Review

Artificial Intelligence (AI) and machine learning are making sweeping changes across all industries, and health care is no exception. AI promises to revolutionize patient treatment with the development of algorithm-driven tools to improve efficiency in clinical care. As alluring as machine-driven learning may be given its potentialities, however, the incorporation of AI into the healthcare field has also been received with trepidation. This fear is understandable given the lack of transparency to the public surrounding the exact mechanisms for creating algorithms and the reasoning followed by the software. Indeed, AI in the healthcare system is aptly known as “black-box medicine.” …

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Articles & Book Chapters

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

The Next Revolution? Negligence Law For The 21st Century, Allan C. Hutchinson

Dalhousie Law Journal

Donoghue’s neighbour is still the defining concept of Canadian tort law. Indeed, the whole history of modern negligence law can be reasonably understood as a concerted judicial effort to adapt and accommodate that principle to changing social, commercial and legal conditions. Now, 90 years later, it is perhaps time to recommend another revolution in negligence law. The Donoghue-inspired doctrine has done sterling work, but it is now weighed down with a bewildering range of conditions, clarifications and complications. When the duty analysis is complemented by other related requirements of causation and remoteness, the law of negligence has become something of …

Rising Tide: The Second Wave Of Climate Torts, Maximillian Scott Matiauda

University of Miami International and Comparative Law Review

Fossil fuels and tobacco products share startling similarities. Both enjoy ubiquity, enable their users to keep pace with the ever-increasing demands of civilization, and choke the life out of those who partake and those who merely look on. The comparison extends to legal battles against their respective industries, as evidenced by a new wave of tort litigation in the federal courts of the United States. In a time where climate change was still establishing consensus, states took up the charge against tobacco companies who had successfully defended against private lawsuits over the deleterious health effects of tobacco. Those suits culminated …

Pelaksanaan Perjanjian Akibat Terjadinya Wanprestasi Karena Pandemi Covid-19: Studi Perbandingan Di Indonesia Dan Malaysia, Nadya Aurelia Salsabila

Lex Patrimonium

The Covid-19 pandemic has had a significant impact on various aspects of people’s lives, one of which is the existence of contracts whose implementation has been disrupted because there are some of parties who cannot fulfill their achievements or contractual obligations by postulating the Covid-19 pandemic as a category of force majeure. This research discusses the implementation of contracts due to defaults due to the Covid-19 pandemic in Indonesia and Malaysia. The method used is normative juridical by examining laws and regulations and court decisions in the two countries which are the focus of comparison in this research. The conclusion …

Urgensi Pengawasan Terhadap Penyedia Jasa Pengiriman Dalam Kegiatan E-Commerce: Studi Komparasi Indonesia Dengan Malaysia, Lydia Azzahro Silparensi, Abdul Salam

Lex Patrimonium

Delivery service providers are a role that is needed, especially with the increase in e-commerce activity. However, the implementation of courier services is still lacking in overcoming these problems. As an effort to increase supervision while adapting it to consumer needs, an analysis was carried out using a normative juridical method by comparing the two institutions between Indonesia and Malaysia. Institutions in Malaysia are different from Indonesia which are under the auspices of the Ministry of Communication and Informatics, that the Malaysian Institution known as the Malaysian Communications and Multimedia Commission is an institution whose role is to oversee communication …

Aspek Keperdataan Terhadap Arisan Online: Studi Kasus Putusan Nomor 1/Pdt.G.S/2021/Pn. Trt, Catherine Sukutania, Abdul Salam

Lex Patrimonium

The development of communication technology gave birth to various phenomena in society, one of which is the arisan online phenomenon. Previously, arisan was often found in the midst of Indonesian society and was carried out conventionally by holding meetings between its members. Currently, arisan can be found online through various social media with various types and methods of implementation. In arisan, there is an engagement relationship between members of the arisan and the chairman or owner of the arisan. In general, arisan is carried out only with an oral agreement between the members and the chairman. Online arisan activities are …