Torts Commons^™

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Foreword, Seattle University Law Review

Seattle University Law Review

Foreward

Putting The Bar Exam On Constitutional Notice: Cut Scores, Race & Ethnicity, And The Public Good, Scott Johns

Seattle University Law Review

Nothing to see here. Season in and season out, bar examiners, experts, supreme courts, and bar associations seem nonplussed, trapped by what they see as the facts, namely, that the bar exam has no possible weaknesses, at least when it comes to alternative licensure mechanisms, that the bar exam is not to blame for disparate racial impacts that spring from administration of this ritualistic process, and that there are no viable alternatives in the harsh cold world of determining minimal competency for the noble purpose of protecting the public from legal harms. All a lie, of course.

But rather than …

Close Encounters Of The Third Kind: The Third Restatement, Duty, And Foreseeability, Michael K. Steenson

Faculty Scholarship

The Restatement (Third) of Torts: Liability for Physical and Emotional Harm (the “Third Restatement”) was adopted by the American Law Institute in 2010. The approach taken by the Third Restatement to negligence law excludes foreseeability from the duty determination and places it squarely as a relevant factor in the breach issue; it adopts the “but-for” standard for causation; and rejects proximate cause terminology, instead utilizing a scope of liability approach in which the key question is whether the harms that occurred were of the same general type that made the actor’s conduct tortious. Removal of foreseeability from the duty determination …

Insuring Fortuity—And Intent: A Comment On Professor French's Insuring Intentional Torts, Erik S. Knutsen, Jeffrey W. Stempel

Scholarly Works

No abstract provided.

The Pandemic And The Public Nuisance: Judicial Intervention In The Era Of Covid-19 And The Collective Right To Public Health, Kyra Ziesk-Socolov

Washington and Lee Journal of Civil Rights and Social Justice

Amidst the unprecedented disruption caused by COVID-19, workplace lawsuits around the country began to apply a longstanding common law theory in a novel way: employee plaintiffs argued that their employers’ noncompliance with state and federal public health guidance designed to curb the spread of the virus should be enjoined as a public nuisance. Although some of these initial public nuisance suits were dismissed, others successfully forced defendant businesses to either alter their COVID safety practices or temporarily close. This Article explores the first pandemic-era public nuisance suit, Rural Community Workers Alliance v. Smithfield Foods, brought by meatpacking plant workers …

Assuming The Risks Of Artificial Intelligence, Amy L. Stein

UF Law Faculty Publications

Tort law has long served as a remedy for those injured by products—and injuries from artificial intelligence (“AI”) are no exception. While many scholars have rightly contemplated the possible tort claims involving AI-driven technologies that cause injury, there has been little focus on the subsequent analysis of defenses. One of these defenses, assumption of risk, has been given particularly short shrift, with most scholars addressing it only in passing. This is intriguing, particularly because assumption of risk has the power to completely bar recovery for a plaintiff who knowingly and voluntarily engaged with a risk. In reality, such a defense …

Mypillow Lands Hard In Judge Wright’S Court, Michael K. Steenson

Faculty Scholarship

In Smartmatic USA Corp. v. Lindell, Smartmatic sued Michael Lindell and MyPillow, Inc. in Minnesota federal district court, alleging defamation and violation of Minnesota’s Deceptive Trade Practices Act based on Lindell’s claims of fraud in the 2020 presidential election, including that Smartmatic voting machines were rigged. This post focuses on Smartmatic’s defamation claim against Lindell and MyPillow.

Hb 1150: Freedom To Farm Act, Wyatt Bazrod, Sarah Page

Georgia State University Law Review

The Act protects agricultural facilities, agricultural operations, and forest landowners from nuisance lawsuits after two years of operation. If a facility converts to a confined animal feeding operation, the two-year time period restarts.

The Limits Of Regulation By Insurance, Kenneth S. Abraham, Daniel Benjamin Schwarcz

Indiana Law Journal

Insurance is an enormously powerful and beneficial method of spreading risk and compensating for loss. But even insurance has its limits. A new and misleading aspiration for insurance—that it also can and often does substitute for or significantly complement health and safety regulation—is increasingly in vogue. This vision starts from the uncontroversial recognition that insurers typically adopt measures designed to counteract “moral hazard,” the tendency of insurance to blunt policyholders’ incentives to take care. But proponents of this vision go on to contend that the risk-reducing potential of insurance is significantly more extensive than is traditionally imagined, because insurers are …

Law's Duct Tape? Using Public Nuisance To Fix The Holes In Administrative Law, Anthony J. Sebok

Articles

No abstract provided.

Patient Decision Aids Improve Patient Safety And Reduce Medical Liability Risk, Thaddeus Pope

Faculty Scholarship

Tort-based doctrines of informed consent have utterly failed to assure that patients understand the risks, benefits, and alternatives to the healthcare they receive. Fifty years of experience with the doctrine of informed consent have shown it to be an abject catastrophe. Most patients lack an even minimal understanding of their treatment options. But there is hope. Substantial evidence shows that patient decision aids (PDAs) and shared decision making can bridge the gap between the theory and practice of informed consent. These evidence-based educational tools empower patients to make decisions with significantly more knowledge and less decisional conflict than clinician-patient discussions …

Can Environmental Law Solve The "Forever Chemical" Problem?, Mark P. Nevitt, Robert V. Percival

Faculty Articles

Although federal environmental law purports to provide the public with comprehensive protection against chemical risks, the U.S. chemical industry is characterized by self­ regulation. This self-regulation is exemplified by the dangers posed by per- and polyfluoroalkyl substances (''PFAS'')­ broad classes of persistent toxic substances that have now entered nearly every American's bloodstream and hundreds of public drinking water systems. Despite data linking exposure to these "forever chemicals" to cancer, infertility, and a host of other public health harms, environmental law has failed to safeguard the American people from PFAS' toxic legacy. How did this occur? And what should be done …

Possessing Intangibles, João Marinotti

Articles by Maurer Faculty

The concept of possession is currently considered inapplicable to intangible assets, whether data, cryptocurrency, or NFTs. Under this view, intangible assets categorically fall outside the purview of property law’s foundational doctrines. Such sweeping conclusions stem from a misunderstanding of the role of possession in property law. This Article refutes the idea that possession constitutes—or even requires—physical control by distinguishing possession from another foundational concept, that of thinghood. It highlights possession’s unique purpose within the property process: conveying the status of in rem claims. In property law, the concept of possession conveys to third parties the allocation of property rights and …

Ethical Malpractice, Nadia N. Sawicki

Faculty Publications & Other Works

Traditional claims of medical malpractice arise from deviations from medical standards of care regarding knowledge, professional decision-making, or technical skill. While many standards of ethical behavior are just as firmly rooted in medical custom as these more technical standards, U.S. courts have typically been unwilling to acknowledge ethical violations as compensable breaches of legal duty. This Article poses a question that should be at the forefront of discussions about medical liability in the 21st century – whether malpractice law should evolve to recognize violations of professional ethical norms as a basis for tort liability. In evaluating this question, it draws …

Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki

Faculty Publications & Other Works

Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.

State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …

Locking Down 'Reasonable' Cybersecurity Duty, Charlotte A. Tschider

Faculty Publications & Other Works

Following a data breach or other cyberattack, the concept of “reasonable” duty, broadly construed, is essential to a plaintiff’s potential causes of action, such as negligence, negligence per se, breach of contract, breach of fiduciary duty, and any number of statutory claims. The impact of an organization’s discretionary choices, such as whether to take specific security steps for a system, may result in potential risk to an individual, another organization, or the organization itself. Although organizations regularly engage in cybersecurity risk analysis, they may not understand what practices will be considered reasonable in a court of law and are therefore …

Deepfakes, Shallowfakes, And The Need For A Private Right Of Action, Eric Kocsis

Dickinson Law Review (2017-Present)

For nearly as long as there have been photographs and videos, people have been editing and manipulating them to make them appear to be something they are not. Usually edited or manipulated photographs are relatively easy to detect, but those days are numbered. Technology has no morality; as it advances, so do the ways it can be misused. The lack of morality is no clearer than with deepfake technology.

People create deepfakes by inputting data sets, most often pictures or videos into a computer. A series of neural networks attempt to mimic the original data set until they are nearly …

Making Privacy Injuries Concrete, Peter Ormerod

Washington and Lee Law Review

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others …

Nominal Damages As Vindication, Sadie Blanchard

Journal Articles

A recent Supreme Court decision inspired a resurgence of interest in an old mystery: how can nominal damages vindicate a plaintiff for past harm? The Court relied on the longstanding common law practice of entitling a plaintiff to sue for violation of her rights, even without demonstrating harm in fact, and to recover nominal damages. Courts have long asserted that awarding nominal damages in such suits vindicates the plaintiff. But they have not explained just how awarding $1 provides vindication, and serious observers scoff at the idea that it does. This Article offers a theory of vindication through nominal damages …