Torts Commons^™

Why Indiana Harbor Is The Worst Torts Decision In American History

Connecticut Law Review

Judge Richard A. Posner’s opinion for the Seventh Circuit in Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., concerning a spill of the hazardous chemical acrylonitrile at a railyard near Chicago, is considered the definitive statement on the abnormally dangerous activity doctrine. That doctrine (also known as the ultrahazardous activity doctrine) holds that one who engages in an abnormally dangerous activity is strictly liable for harm caused to others, regardless of negligence. However, Judge Posner’s opinion suggests that strict liability should rarely displace the negligence standard, even for commercial activities that externalize high degrees of risk. That approach leads …

Tort Reform & The Takings Clause, Bailey D. Barnes

Buffalo Law Review

The United States tort reform movement has capped noneconomic damage awards in many jurisdictions, thereby preventing the most injured plaintiffs from being fully compensated for their suffering. While litigants have asserted numerous state constitutional challenges to these tort recovery limits, with varying degrees of success, aggrieved plaintiffs have underutilized the Fifth Amendment’s Takings Clause. This Article advocates that judicial reduction of a jury’s noneconomic damage calculation after the court has informed the successful plaintiff of the full verdict is a regulatory taking in violation of the federal Takings Clause, as incorporated against the states through the Fourteenth Amendment.

A Takings …

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

Why Indiana Harbor Is The Worst Torts Decision In American History, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.

Wrongs To Us, Steven Schaus

Michigan Law Review

A huge number of tort suits in the United States are captioned Plaintiff & Spouse v. Defendant. Why? The answer is at once completely obvious and deeply puzzling. The plaintiff’s spouse is part of the case because, in almost every U.S. state, she has a claim against the defendant too—not for battery or negligence, as her spouse might, but for the loss of her spouse’s “consortium.” And yet, it’s not at all clear why a spouse should have a tort claim of this kind. A plaintiff who sues in tort, Judge Cardozo once explained, must always identify “ ‘a …

Emotional Distress Claims, Dignitary Torts, And The Medical-Legal Fiction Of Reasonable Sensitivity, Alessandra Suuberg

Journal of Law and Health

Can individuals with a highly sensitive temperament recover in tort for intentional infliction of emotional distress (IIED)? In 2019, an article in the University of Memphis Law Review raised this question, referring to the "Highly Sensitive Person" (HSP) construct in psychology and asking whether the IIED tort’s 'reasonable person' standard discriminates against highly sensitive plaintiffs. Following up on that discussion, the present article considers how the law of IIED has historically treated plaintiffs with diagnosed psychiatric vulnerabilities that are either known or unknown to the defendant. The article also extends this discussion to the law's treatment of temperaments, such as …

Tort Law, Amirthalingam Kumaralingam, Gary Kok Yew Chan

Research Collection Yong Pung How School Of Law

No abstract provided.

A More Perfect Union For Whom?, Emmanuel Hiram Arnaud

Articles

Amending the federal Constitution has been instrumental in creating and developing the North American constitutional project. The difficult process embedded in Article V has been used by “The People” to expand rights and democracy, fix procedural deficiencies, and even overturn Supreme Court precedent. Yet, it is no secret that the amendment process has fallen to the wayside and that a constitutional amendment in our present age of extreme political polarization feels impossible.

Our nation’s history suggests otherwise. In John F. Kowal and Wilfred U. Codrington III’s exciting and inspirational new book, they explain that interest in constitutional amendments has coincided …

Harm Egalitarianism, Michael E. Herz

Articles

No abstract provided.

Our Biggest Fans: Nuisance Immunity For Grid-Scale Wind Energy Projects In Maine, Andrew D. Hersom

Maine Law Review

Global climate change and its attendant impacts threaten to change life on Earth as we know it. The sea level rise that comes with rising temperatures is an issue of particular importance to coastal states like Maine. Thankfully, continued investment in renewable energy technology is beginning to make certain renewable energy sources competitive with their nonrenewable counterparts. This Comment highlights wind energy as a particularly effective option for meeting Maine’s energy needs while significantly reducing the harmful greenhouse gas emissions that contribute to climate change. Despite its many benefits, wind energy technology still has its detractors. Wind energy projects (especially …

Brief Of Amicus Curiae Gregory Klass In Support Of Plaintiff-Appellee, Gregory Klass

Georgetown Law Faculty Publications and Other Works

This scholar’s amicus brief in the Fifth Circuit argues that tort remedies play an important role in the contract ecosystem, including promoting efficiency in exchanges; that a party who has been defrauded in the formation of a contract is not bound by contractual limitations on tort liability; and that worries about the tortification of contract law are overblown and out of date.

The Bankruptcy Of Purdue Pharma In The Wake Of Big Tobacco, Jacob Hedgpeth

University of Colorado Law Review Forum

Two distinct public health crises shook the United States from 1954 to 2023: nicotine addiction from tobacco products, and opioid addiction starting with Purdue Pharmaceutical’s OxyContin. These crises resulted in millions of deaths and immense costs to the country as a whole. The nicotine crisis ended in a national settlement against four major tobacco manufacturers, which yielded hundreds of millions of dollars for those harmed by these products. The owners of Purdue, however, opted for bankruptcy instead of settlement, keeping the majority of the money made from OxyContin for Purdue’s owners, the Sackler family.

These four tobacco giants and Purdue …

The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers

Washington and Lee Journal of Civil Rights and Social Justice

Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …

Pain Management, Disorders Of Consciousness, And Tort Law: An Emergency Tort To Fix A Longstanding Injustice, Joseph J. Fins, Zachary E. Shapiro

Indiana Law Journal

We address the systemic undertreatment of pain for individuals diagnosed with disorders of consciousness (DoC). Patients with DoC are often unable to communicate due to damage to their brains, and because DoC patients appear to be insensate, practitioners often believe that these patients are unable to feel pain and may not offer them analgesia, even before painful medical procedures. However, science shows that many DoC patients are able to feel pain, even if they are unable to communicate their distress. This Article moves from recognition of this problem to proposing solutions, in particular exploring what the legal system can do …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law Review

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Permasalahan Konsepsi Harta Bersama Dalam Kepemilikan Saham Perseroan Terbatas (Studi Kasus Putusan Nomor 80/Pdt.G/2020/Pn.Jkt.Utr), Mutiara Husna Wahono, Lauditta Humaira

Lex Patrimonium

A limited liability company as a legal entity adheres to the principle of a separate legal entity which creates the concept of limited liability of its shareholders. The existence of these two concepts automatically separates the assets of the limited liability company from the personal assets of its shareholders. Even though the shareholders are part owners of the limited liability company, the shareholders cannot claim the assets of the limited liability company. Shares acquired while in marital status can become joint property. However, the Indonesian Marriage Law does not provide special arrangements or mechanisms regarding the distribution of joint assets, …

Adapting Private Law For Climate Change Adaptation, Jim Rossi, J. B. Ruhl

Vanderbilt Law School Faculty Publications

The private law of torts, property, and contracts will and should play an important role in resolving disputes regarding how private individuals and entities respond to and manage the harms of climate change that cannot be avoided through mitigation (known in climate change policy dialogue as “adaptation”). While adaptation is commonly presented as a problem needing legislative solutions, this Article presents a novel and overdue case for private law to take climate adaptation seriously.

To date, the role of private law is a significant blind spot in scholarly discussions of climate adaptation. Litigation invoking common-law doctrines in climate adaption disputes …

Mission Impossible? The Case For Municipal Tort Liability Reform In A Post-Valdez World, Shelley Wu

Cardozo Law Review

No abstract provided.

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

No abstract provided.