Torts Commons^™

Frivolous Defenses, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

This article is about civil procedure, torts, insurance, litigation, and professional ethics. This is an empirical piece with data drawn from a sample of 356 answers to 298 complaints in car crash lawsuits to identify various ways that, I argue, insurance defense lawyers evade the rules of civil procedure and, frankly, act unprofessionally.

The empirical center of this piece examines 356 answers in car crash personal injury cases in Colorado’s district courts. First, I situate these cases within dispute pyramid elements including the total number of miles-traveled within Colorado and also with respect to the volume of civil litigation.

The …

An Introductory Study On The Challenges Of Artificial Intelligence In Tort Law, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

Artificial intelligence (AI) and machine learning are creating a promising future in tech innovations. From early cancer detection apps to autonomous vehicles, possibilities seem to be endless. Yet, with such technology, harm is also bound to follow. In such instances, the issue of tort liability begs our attention. Who should bear reasonability in case of an accident? When is an injury foreseeable? Such questions in negligence law will require a different perspective when one is dealing with an accident arisen out of the implementation of AI. Should tort law take the route of products liability law? Or will traditional negligence …

Defenses To The Tort Of Negligence: A Comparative Study Of The Iranian And The U.S. Legal Systems, Laya Joneydi, Zahra Takhshid

Sturm College of Law: Faculty Scholarship

Tortfeasors are entitled to defend themselves against liability claims. In the United States tort system, in addition to general defenses, common law rules have recognized special affirmative defenses for tortfeasors based upon plaintiff's carelessness that has contributed to the injury. The two defenses at study in this article are contributory negligence and comparative fault. In this article, we introduce the defense within a new structure that is compatible with the Iranian legal system. This article contributes to the academic tort law literature in Iran by proposing the recognition of such a rubric in the Iranian tort system. In a comprehensive …

Reconstructing Malice In The Law Of Punitive Damages, Marc O. Degirolami

Scholarly Articles

Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal …

Making Preconception Tort Theory Crisper, Mark Strasser

Marquette Law Review

More and more individuals seeking to expand their families make use of

someone else’s gametes to help create a child. Unsurprisingly, those

considering the use of donated or purchased gametes often seek reassurance

that the use of those gametes will not create an increased risk that a child

thereby produced will have a severe disease. Sometimes, because of negligence

or recklessness, gametes are used that result in children having severe disease

where that outcome would have been avoided though the use of reasonable

care. Regrettably, courts addressing whether liability may be imposed in such

cases have sometimes misunderstood and misapplied …

The Burdens Of All: Progressive Origins Of Accident Cost Socialization In Tort Law, 1870-1920, Joseph A. Ranney

Marquette Law Review

Scholars who have studied the Progressive Movement’s contributions to

American law have paid little attention to its impact on tort law. This Article

helps fill the gap by examining the ways in which Progressivism shaped the rise

of employer liability law, workers compensation, and comparative negligence

during the late-nineteenth and early-twentieth centuries. The Article places

these reforms within the broader social history of American tort law—a

gradual, often tortuous transition from free-labor beliefs that the law should

encourage personal responsibility and economic growth above all else to a

realization that injuries are an unavoidable cost of economic modernization,

accompanied by …

Lech's Mess With The Tenth Circuit: Why Governmental Entities Are Not Exempt From Paying Just Compensation When They Destroy Property Pursuant To Their Police Powers, Emilio R. Longoria

Faculty Articles

On June 29, 2020, the Supreme Court denied certiorari in Lech v. Jackson, a Tenth Circuit inverse condemnation case, which held that governmental entities are categorically exempt from paying just compensation when they destroy private property pursuant to their police powers. This denial of certiorari cements a highly controversial circuit court holding into our takings jurisprudence the effects of which will be serious and far reaching. This article dissects the Tenth Circuit's opinion in Lech and explains how and why this holding should be revisited. If it is not, we risk losing the protection that the Fifth Amendment's Just Compensation …

Sovereign Immunity And Interstate Government Tort, Louise Weinberg

University of Michigan Journal of Law Reform

This paper argues that the Supreme Court made a serious mistake last term, when, in a case of interstate government tort, it tore up useful options that should be available to each state for the rare cases in which they would be of service. In seeking to insulate a state from liability when its employee intrudes on a sister state’s territory and causes injury there, the Court stripped every state of power, in cases of interstate government tort, to try injuries occurring on its own territory to its own residents—an unprecedented disregard of a state’s acknowledged traditional interests. Indeed, the …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

Destruction Of Cultural Heritage As A Violation Of Human Rights: Application Of The Alien Tort Statute, Emily T. Behzadi

Faculty Scholarship

In recent years, armed conflicts around the world have occasioned widespread destruction of cultural heritage sites. From the demolition of Palmyra in the Syrian Arab Republic to the destruction of Sufri Shrines in Mali, the intentional despoliation of these important cultural heritage sites is not only an uncontroverted violation of international law but a form of cultural genocide. The destruction of cultural heritage profoundly impacts citizenry on a local, national, and global level. Cultural heritage is an expression of fundamental and universally recognized human rights, including rights to freedom of expression, freedom of thought, freedom of conscience and religion, and …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

Teaching With Feminist Judgments, Bridget J. Crawford, Kathryn M. Stanchi, Linda L. Berger

Elisabeth Haub School of Law Faculty Publications

This chapter, part of Integrating Doctrine and Diversity: Inclusion and Equity in the Law School Classroom (Carolina Academic Press 2021), provides an overview of the U.S. Feminist Judgments Project, a collaboration of feminist scholars and lawyers who rewrite significant judicial opinions using feminist methods and reasoning. One of the primary goals of the series of Feminist Judgments books is to demonstrate that the law has a vast, but often unrealized, potential for social justice. The feminist judgment methodology requires the authors of rewritten opinions to act as judges in following the rules of precedent and custom—and to be bound by …

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, …

From Automation To Autonomy: Legal And Ethical Responsibility Gaps In Artificial Intelligence Innovation, David Nersessian, Ruben Mancha

Michigan Technology Law Review

The increasing prominence of artificial intelligence (AI) systems in daily life and the evolving capacity of these systems to process data and act without human input raise important legal and ethical concerns. This article identifies three primary AI actors in the value chain (innovators, providers, and users) and three primary types of AI (automation, augmentation, and autonomy). It then considers responsibility in AI innovation from two perspectives: (i) strict liability claims arising out of the development, commercialization, and use of products with built-in AI capabilities (designated herein as “AI artifacts”); and (ii) an original research study on the ethical practices …

Jewish Law And The Concept Of Negligence, Steven F. Friedell

Touro Law Review

No abstract provided.

The Euclid Proviso, Ezra Rosser

Scholarly Articles in Law Reviews & Journals

This Article argues that the Euclid Proviso, which allows regional concerns to trump local zoning when required by the general welfare, should play a larger role in zoning's second century. Traditional zoning operates to severely limit the construction of additional housing. This locks in the advantages of homeowners but at tremendous cost, primarily in the form of unaffordable housing, to those who would like to join the community. State preemption of local zoning defies traditional categorization; it is at once both radically destabilizing and market-responsive. But, given the ways in which zoning is a foundational part of the racial and …

The Past, Present, And Future Of The Restatement Of Copyright, Shyamkrishna Balganesh, Jane C. Ginsburg

Faculty Scholarship

It is now six years since the American Law Institute (ALI) began work on its first ever Restatement of an area dominated by a federal statute: copyright law. To say that the Restatement of the Law, Copyright (hereinafter “Restatement”) has been controversial would be a gross understatement. Even in its inception, the ALI identified the project as an outlier, noting that it was likely to be seen as an “odd project” since copyright “is governed by a detailed federal statute.”1 Neither the oddity nor the novelty of the project, however, caused the ALI to slow its efforts to push the …

Corporate Misconduct In The Pharmaceutical Industry, Richard C. Ausness

Law Faculty Scholarly Articles

Sadly, many pharmaceutical companies have engaged in unethical or illegal behavior. The current opioid crisis is the most recent example of misconduct by pharmaceutical companies. Moreover, this pattern of conduct is neither rare, nor recent. Instead, it is long-standing and pervasive in nature. Furthermore, unlike wrongdoing by other businesses that cause primarily economic or environmental harm, wrongdoing by pharmaceutical companies, like that of asbestos or tobacco companies, may cause personal injuries and death on a large scale.

Causation And Apportionment Issues In Opioid Litigation, Richard C. Ausness

Law Faculty Scholarly Articles

In November 2019, an Oklahoma trial court judge, sitting without a jury, ruled that Johnson & Johnson and its subsidiary Janssen Pharmaceuticals were guilty of creating a public nuisance because their production and marketing of prescription opioid painkillers significantly contributed to the current opioid epidemic in the State of Oklahoma. The judge also held that Johnson & Johnson must contribute $65 million to pay for the State's program to abate this nuisance. Although the case has been appealed, it is significant because it was the first government sponsored opioid case to actually go to trial. Although there are many issues …

Designing Children: Tort Liability For Medical Providers In The Era Of Crispr/Cas-9 Geneticc Editing, Sarah Roa

Mitchell Hamline Law Review

No abstract provided.